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When Abby Martin, a journalist and filmmaker, was invited to be the keynote speaker for a 2019 conference on critical media literacy at Georgia Southern University, she was sent an independent contractor agreement by university officials committing to pay her a $1,000 honorarium and the cost of travel and lodging.
The agreement contained what for Martin was a poison pill: it required her to certify she was “not currently engaged in, and agree for the duration of this agreement not to engage in, a boycott of Israel.”
The provision was pursuant to a 2016 Georgia law -- one of more than two dozen similar state laws around the country targeting the boycott, divestment and sanctions efforts against Israel, commonly referred to as the BDS movement -- that prohibits the state from entering into contracts valued at $1,000 or more with individuals or companies absent such an antiboycott certification.
Martin, who directed the 2019 feature film Gaza Fights for Freedom, declined to sign the contract, saying she could not sign any form promising not to boycott Israel. The honorarium was forfeited, the conference canceled. Martin filed suit, alleging the Georgia law constituted an unconstitutional infringement on her rights to freedom of speech and association and to due process.
U.S. District Judge Mark Cohen agreed, ruling Friday that the law unconstitutionally constrains speech. Judge Cohen's order does not actually strike down the Georgia law, but it allows Martin's case to proceed.
“The certification that one is not engaged in a boycott of Israel is no different that [sic] requiring a person to espouse certain political beliefs or to engage in certain political associations,” Judge Cohen wrote in an order denying the state of Georgia’s motion to dismiss the lawsuit. “The Supreme Court has found similar requirements to be unconstitutional on their face.”
Mara Verheyden-Hilliard, counsel for the Partnership for Civil Justice Fund, which filed the lawsuit jointly with the Georgia chapter of the Council on American-Islamic Relations, celebrated the ruling during an online press conference.
“All around the United States, there has been a concerted effort to enact these kinds of anti-BDS laws in order to silence, suppress, punish the movement of people who are peacefully seeking justice for the Palestinian people, and who are very concerned that our government, that the government of the United States is providing the very weapons, is providing the support that we could see in use over these last weeks in the onslaught against Palestinians,” Verheyden-Hilliard said.
“We believe that this moment in time and this ruling is so crucial and really applaud it because we need this as the American people,” she said. “We have to always have the right to say what we think, to fight for what we believe in, to not be threatened by a state for punishment for those beliefs. Just because some state legislators may not agree with any particular political opinion or point of view, they do not have the right to try to legislate it away.”
A spokeswoman for the Georgia Office of the Attorney General declined to comment. The state had argued in court that the law regulates commercial conduct, not speech, and therefore did not violate First Amendment protections.
A tracker maintained by Palestine Legal identifies 25 states, including Georgia, with anti-BDS laws related to state contracts in effect.
Courts have issued rulings striking down anti-BDS laws in Arkansas, Arizona, Kansas and Texas. Arizona, Kansas and Texas passed legislation in the wake of court defeats narrowing the scope of such laws so they do not apply to contracts valued at less than $100,000 and to individuals or sole proprietors.
Legislation proposed during Georgia’s most recent legislative session would likewise have amended the anti-BDS law so it only applied to contracts worth $100,000 or more and would not apply to individuals or sole proprietorships. A House version of the proposed legislation also included language stipulating that companies would only need to certify their nonparticipation in a boycott of Israel in instances where the “subject matter of the contract is, or reasonably might be, affected by the participation in the boycott.”
“The state is entitled to the full benefit of the marketplace when it goes into the marketplace to purchase goods and services,” said Marc Stern, chief legal officer for the American Jewish Committee, which advocated for amendments narrowing the scope of the Georgia law. “What BDS supporters are trying to do is enlist states in their own political vision of the world. The statutes are saying we don’t want to be enlisted in your political campaign.”
But while AJC supports anti-BDS government contracting laws, Stern said such laws were never intended to apply to individuals like Martin, who were eligible for a modest honorarium to speak at a conference.
“I think that state officials applying the law in an overly mechanical fashion applied it to a circumstance which it wasn’t intended to reach,” Stern said. That said, he added, “the statutes weren’t always written as carefully as they might be.”
In a press conference, Murtaza Khwaja, the executive director of CAIR Georgia, said the group opposes narrowing the bill to only apply to contracts worth $100,000 or more.
“Our position … is that any form of restriction of this protest is unconstitutional,” Khwaja said. “To give you an extreme analogy, if you prohibited all Black males to vote, that’s clearly wrong and unconstitutional. It would not be better to say all Black men over 70 cannot vote. That is still unconstitutional and just because it restricts the number of people it affects does not mean it’s a law that should pass.”
Two Jewish organizations, T’ruah: The Rabbinic Call for Human Rights and J Street, filed a joint amicus brief supporting Martin's lawsuit. Both groups said they do not support the BDS movement but argued that boycotts are a protected form of expression.
"Congress and state legislatures are free to express their institutional opposition to the Global BDS movement through resolutions or hearings on the subject, but the First Amendment does not permit governments to use fiscal policy to pick winners and losers among those expressing their views on policy debates," the groups said in the amicus brief.