The current climate in the U.S concerning the legal status of BDS is quite confusing and complex, pushing in various directions.
In September 2017 in a speech at Georgetown University, the American Attorney General Jeff Sessions said that freedom of speech is under attack on college campuses in America, that political correctness has transformed the academic spaces “into an echo chamber of political correctness and homogeneous thought.” He mentioned the cancelling of speaking events due to fear of protests as a “heckler’s veto," adding "This is not right. This is not in the great tradition of America. And, yet, school administrators bend to this behavior. In effect, they coddle it and encourage it.” He reiterated that the Department of Justice intend to take action to ensure First Amendment rights, it “will enforce federal law, defend free speech, and protect students’ free expression from whatever end of the political spectrum it may come”.
To some, freedom of speech and the boycott of Israel seem to clash. Last year the bill The Israel Anti-Boycott Act was introduced in Congress, intending to punish those who boycott Israel. The bill would make it a felony to choose not to engage in business with Israeli companies. Civil penalties proposed of up to $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. However, the bill has not passed yet because opponents such as the American Civil Liberties Union (ACLU) found it unconstitutional. The bill was amended but the ACLU still finds it unconstitutional. According to ACLU, the proposed legislation violates the First Amendment because political boycotts are fully protected by the First Amendment. "The Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi."
Supporters of BDS argue the boycott is a peaceful way to oppose Israel’s occupation of the Palestinian territories, that boycotting a country "is different from discriminating against people of a certain national origin. Sanctions against other countries ― such as sanctions against Iran for example ― do not amount to national origin discrimination." They also claim that "boycotting Israel does not equate to boycotting the Jewish people, since Israel is a state while being Jewish is a religious and ethnic identity."
Critics of BDS argue that the boycott is anti-Semitic and delegitimizes the state of Israel. For them, economic boycotts against Israel is a form of discrimination.
Meanwhile, in the last three years, over a dozen U.S states have passed laws aiming to thwart BDS. The state of Arizona, for example, enacted a bill in 2016 (Arizona 35-393.01) which determines that:
1. A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.
2. A public entity may not adopt a procurement, investment or other policy that has the effect of inducing or requiring a person or company to boycott Israel.
In a step to contest this law, Dr. Hatem Bazian, the Arizona chapter of the Council on American-Islamic Relations (CAIR) and the Muslim Students Association at Arizona State University (ASU) filed a lawsuit against ASU and the Arizona Board of Regents. They challenged the state bill, claiming that it is a “fundamental violation of the First Amendment’s guarantee of free speech.”
Bazian is an adjunct professor at the University of California Berkeley and chairs the group American Muslims for Palestine, he also co-founded Students for Justice in Palestine and is a leader in the BDS movement in the United States. He filed the complaint after a contract was sent to him for a speaking engagement due on April, 3 in an event presenting Palestinian perspectives on Middle East conflict and the BDS Movement. The contract included a statement that he is “not currently engaged in” and agrees “not to engage in, a boycott of Israel” for the duration of the contract. Being a staunch BDS supporter he refused to sign.
The case was resolved in court very quickly and on March 16 CAIR published the following statement, "CAIR Welcomes Victory Allowing Pro-BDS Event at Arizona State University Despite Unconstitutional Anti-BDS Law." It announced that "the CAIR Legal Defense Fund (CAIR) today reached a court-approved agreement," allowing the event with Dr. Hatem Bazian and American Muslims for Palestine (AMP) to move forward. But contrary to the victory claimed by CAIR, the lawyer representing ASU explained that “It was a simple mistake that the ASU form containing the certification was used." The certification was not needed for a student group organizing the event because “Student groups are not public entities.”
No doubt the battle over BDS in America will continue. CAIR National Litigation Director Lena Masri already announced “we will not rest until Arizona’s anti-BDS law is declared unconstitutional.” At the same time, Jewish scholars and students should make use of the Department of Justice when their freedom of speech is threatened. IAM will report on academic cases as they occur.
The New Israel Anti-Boycott Act Is Still Unconstitutional
Over the weekend, two senators introduced changes to the Israel Anti-Boycott Act, which would criminalize participation in certain political boycotts targeting Israel. The changes attempt to address the civil liberties concerns
raised by the ACLU and other groups.
Unfortunately, the revised bill still violates the First Amendment. It does so by unconstitutionally penalizing Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories, if those boycotts were called for by international governmental organizations like the United Nations.
This is impermissible. Political boycotts are fully protected by the First Amendment. The Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware
, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi. If the Israel Anti-Boycott Act were to pass and take effect, we would strongly consider challenging it in court.
The Israel Anti-Boycott Act seeks to amend a 1970s law known as the Export Administration Act
. That law was passed in response to the Arab League’s boycott of Israel, which required U.S. businesses to boycott Israel as a condition of doing business with Arab League countries. To prevent foreign countries from bullying U.S. businesses into these compulsory boycotts, the EAA prohibited U.S. companies from entering into agreements with foreign governments to boycott countries friendly to the United States. Whereas the EAA was meant to protect U.S. companies from these compulsory boycotts, the Israel Anti-Boycott Act seeks to dictate the political activities Americans can and can’t engage in. It does so by imposing civil and criminal penalties on American organizations that participate in political boycotts called for by international organizations.
But this latest version would still allow people who boycott to be slapped with criminal financial penalties. It suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts. In fact, the bill’s sponsors openly admit that it was designed for this purpose. In the press release accompanying its announcement, Sen. Mike Crapo (R-Idaho) described the bill as an attempt to “combat Boycott, Divestment, and Sanctions (BDS) efforts targeting Israel.” Sen. Sherrod Brown (D-Ohio) also characterized the bill as “anti-BDS legislation.” Although the bill states that “[n]othing in this Act . . . shall be construed to diminish or infringe upon any right protected under the First Amendment,” these words rings hollow in light of the bill’s obvious purpose.
Israel Anti-Boycott Act, amended by Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio), does contain several significant improvements from the original draft. For example, the bill now makes clear that Americans cannot be imprisoned for their boycott participation. It also provides that speech critical of Israel cannot be used to open an investigation against an individual or as evidence that the person violated the law. These changes alleviate some of the gravest dangers posed by the bill.
The Israel Anti-Boycott Act cannot be viewed in isolation. It is part of a sustained legislative campaign in the state and federal governments to suppress boycotts of Israel. Just a few weeks ago, a federal court in Kansas agreed with the ACLU’s First Amendment challenge
to a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court recognized that the Kansas state government could not constitutionally suppress our client’s boycott to silence one side in the public debate over the Israeli-Palestinian conflict. In halting enforcement of the law, the court held
that our client’s boycott of Israel:
“is protected for the same reason as the boycotters’ conduct in [NAACP v. Claiborne Hardware] was protected. . . . Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced by both Palestinian and Israeli citizens.”
From the campaign to divest
from apartheid South Africa to the recent boycott
against the National Rifle Association, boycotts have always been a key feature of American politics. If state and federal governments could outlaw boycotts they don’t like, all sorts of social movements would suffer. Whatever their views are on Israel and Palestine, members of Congress should recognize that the Israel Anti-Boycott Act threatens fundamental First Amendment values. We urge them to oppose it.
CAIR, Muslim Students To Sue Regents, ASU As Part Of “Global Campaign To Delegitimize Israel”
On Friday, March 2, the Arizona chapter of the Council on American-Islamic Relations (CAIR-AZ) and representatives of the Muslim Students Association (MSA) at Arizona State University (ASU) held a press conference to announce a lawsuit against ASU and the Arizona Board of Regents.
The lawsuit, filed by the CAIR Legal Defense Fund in Washington, D.C., challenges that state’s statute (Arizona 35-393.01).
35-393.01. Contracting; procurement; investment; prohibitions
A. A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.
B. A public entity may not adopt a procurement, investment or other policy that has the effect of inducing or requiring a person or company to boycott Israel.
CAIR claims that the contract terms used by ASU in adherence to Arizona 35-393.01 prohibits groups and organizations from inviting speakers to campus who are affiliated with the Boycott, Divestment, Sanctions (BDS) movement.
CAIR, along with plaintiffs from American Muslims for Palestine (AMP) and Dr. Hatem Bazian, are challenging the law claiming that it is a “fundamental violation of the First Amendment’s guarantee of free speech.”
According to the Anti-Defamation League (ADL), the BDS movement is a “global campaign to delegitimize Israel.”
The BDS campaign “was endorsed by pro-Palestinian organizations in Europe and the United States and the call for BDS against Israel has since become a key tactic within the global effort to delegitimize and isolate Israel,” according to ADL.
“Some supporters of BDS may genuinely believe that these efforts will encourage Israel to change policies with which they disagree,” REPORTS THE adl. “However, the predominant drive of the BDS campaign and its leadership is not criticism of policies, but the demonization and delegitimization of Israel. BDS campaigns promote a biased and simplistic approach to the complex Israeli-Palestinian conflict, and present this dispute over territorial and nationalist claims as the fault of only one party – Israel. The BDS campaign does not support Israeli-Palestinian peace efforts, and rejects a two-state solution to the conflict.”
In 2014, the National Review argued that CAIR could “rightly be characterized” as a supporter of terrorism:
“True, it does not set off bombs, but, as the UAE’s foreign minister explains, “Our threshold is quite low. . . . We cannot accept incitement or funding.” Indeed, CAIR incites, funds, and does much more vis-à-vis terrorism:
It apologizes for terrorist groups: Challenged repeatedly to denounce Hamas and Hezbollah as terrorist groups, CAIR denounces the acts of violence but not their sponsors.
It is connected to Hamas: Hamas, designated a terrorist organization by the U.S. and many other governments, indirectly created CAIR and the two groups remain tight. Examples: In 1994, CAIR head Nihad Awad publicly declared his support for Hamas; the Holy Land Foundation (HLF), a Hamas front group, contributed $5,000 to CAIR; in turn, CAIR exploited the 9/11 attacks to raise money for HLF; and, this past August, demonstrators at a CAIR-sponsored rally in Florida proclaimed “We are Hamas!”
The lawsuit reads in part:
In 2016, the State of Arizona chose to categorically take Israel’s side in this international conflict by adopting Ariz. Rev. Stat. § 35-393. This Act bars the State of Arizona from entering into government contracts with companies or persons who engage in or advocate for economic boycotts of Israel.
On February 22, 2018 the Muslim Students Association of Arizona State University invited American Muslims for Palestine and Dr. Hatem Bazian to speak at an April 3, 2018 educational event regarding Palestinian perspectives on Middle East conflict, including the Boycott, Divestment and Sanctions Movement. Because of the Act, however, Arizona State University’s standard outside speaker contract was amended in 2016 to contain a “No Boycott of Israel” clause. American Muslims for Palestine and Dr. Hatem Bazian cannot agree to that clause. They are therefore barred from presenting at the April 3, 2018 campus event solely because they engage in and advocate for economic boycotts of Israel as a means to promote Palestinians’ human rights.
Raees Mohamed of Kelly Warner, PLLC is co-counsel on the lawsuit.
Muslim scholar sues ASU over 2016 state law on Israel support
By: Howard Fischer, Capitol Media Services March 5, 2018 , 12:22 pm
Claiming censorship, attorneys allege Arizona State University is illegally blocking a Muslim academician from speaking on campus because of his political beliefs.
The lawsuit filed in federal court here says the university won’t allow Hatem Bazian to speak on campus about the “boycott, divest, sanction” movement aimed at pressuring Israel to change its policies, particularly in regard to Jewish settlements on the West Bank. That’s because Bazian won’t sign an agreement certifying that he will not engage in a boycott of Israel.
That agreement language comes directly from a 2016 state law that bars state and local governments — and publicly funded universities — from doing business with any firm that won’t do business with Israel.
Spokesman Brett Hovell said while the university is complying with the law, it does not believe the certification requirement applies here. And he said the most recent version of the form for speakers does not contain that language. ASU, for its part, is calling the whole issue a “misunderstanding.”
But attorney Gadeir Abbas of the Council on American-Islamic Relations Defense Fund, told Capitol Media Services that the requirement is clearly spelled out in the contract that Bazian was asked — and refused — to sign.
Now CAIR is asking U.S. District Court Judge John Tuchi to issue an injunction to block ASU from enforcing the provision ahead of Bazian’s scheduled April 4 appearance.
More significant, the lawsuit ultimately wants Tuchi to void enforcement of the law at all levels.
The new lawsuit is the second legal challenge to the statute.
Attorneys from the American Civil Liberties Union filed suit last year after Flagstaff attorney Mik Jordahl was told he needed to sign a similar form forswearing any boycott of Israel as a condition of maintaining his contract to do legal work for the Coconino County Jail District. Jordahl, who is admittedly a supporter of the BDS movement, said he should not be forced to choose between his First Amendment right of protest and his ability to perform services for government agencies.
That is also the basis for the new lawsuit.
“Boycott activity is a hallowed tradition in America,” Abbas said, citing the Boston Tea Party, the Montgomery bus boycott of the civil rights movement, and the boycott against companies doing business in South Africa before it abandoned its policy of apartheid. “It’s a very strongly protected constitutional activity.”
There’s also a political issue here.
The 2016 law and subsequent events come against a backdrop of the question of the Israeli settlements in what the Palestinians called the “Occupied Palestinian Territories.” Some elements of the Israeli community refer to that same area as Judea and Samaria, the Old Testament names for what is now the West Bank, in an effort to show a biblical claim to the area.
Bazian, a lecturer and adjunct professor at the University of California Berkeley, chairs American Muslims for Palestine. He also is a cofounder of Students for Justice in Palestine and, according to the lawsuit, a leader in the BDS movement in the United States.
Abbas said that the Legislature, in deciding to adopt the 2016 law “chose to categorically take Israel’s side in this international conflict.”
Hovell said ASU does include the requirement that those who contract with the university that they agree not to engage in a boycott of Israel. But he said this contract was with a student group.
“Student groups are not public entities,” he said.
“It was a simple mistake that the ASU form containing the certification was used,” Hovell said. “The certification was not needed.”
Abbas said CAIR will continue to pursue the litigation and seek a court order affirming Bazian’s right to speak on campus despite his refusal to sign the contract that was sent to him.
An aide to Attorney General Mark Brnovich, who was named in the new lawsuit, declined to comment.
But Brnovich, in defending the state against Jordahl’s lawsuit, said Arizona lawmakers have a legal — and he contends moral — right to ensure that companies receiving public funds do not discriminate based on national origin, even if it is only Israel that is getting singled out for special protection.
“When you have a close ally of the United States, where you have a key trading partner to the state of Arizona that has been under, quite frankly, constant attacks since 1948, I think the state does have a role,” he said. “I think we do have a right to say, ‘We stand with Israel.’ ”
CAIR Welcomes Victory Allowing Pro-BDS Event at Arizona State University Despite Unconstitutional Anti-BDS Law
Last Updated: March 16, 2018
(WASHINGTON, D.C., 3/16/18) – The CAIR Legal Defense Fund (CAIR) today reached a court-approved agreement with Arizona State University (ASU), the Arizona Board of Regents and Arizona Attorney General to allow an event with Dr. Hatem Bazian and American Muslims for Palestine (AMP) to move forward without interruption on April 3.
Initially, ASU offered Dr. Bazian and AMP a speaking engagement contract that -- in accordance with Arizona’s anti-Boycott, Divestment, Sanctions (BDS) law -- required them to certify that they were “not currently engaged in” and agree “not to engage in, a boycott of Israel” for the duration of the contract. Dr. Bazian and AMP refused to sign the contract.
CAIR, on behalf of Dr. Bazian and AMP, filed a lawsuit in the United States District Court for the District of Arizona that challenges the BDS law as a violation of the First Amendment’s guarantee of free speech. Raees Mohamed of Kelly Warner, PLLC and CAIR-AZ board chair is co-counsel on the lawsuit.
Since the lawsuit was filed, ASU has agreed to issue a revised speaker engagement contract that no longer requires Dr. Bazian and AMP to comply with the Arizona BDS law. “There is no place where freedom of speech is more valued and protected than America’s colleges and universities. We are pleased that ASU has agreed that it will not enforce Arizona’s unconstitutional anti-BDS law and that it will allow this important event to occur without interruption,” said CAIR National Litigation Director Lena Masri. “However, we will not rest until Arizona’s anti-BDS law is declared unconstitutional.”
“We are thrilled to reach an agreement with Arizona State University, the Arizona Board of Regents and the Arizona Attorney General’s Office that our clients’ First Amendment rights will be protected, and that they can express their boycott viewpoints, despite Arizona’s anti-BDS statute. But the fight is far from over. This process demonstrates that the anti-BDS statute is overbroad, vague and ambiguous. We look forward to the court’s review of its constitutionality,” said Raees Mohamed of Kelly Warner, PLLC.
“We are pleased to hear that ASU, the Arizona Board of Regents and the State of Arizona will not interfere with Dr. Bazian and AMP’s First Amendment rights," said CAIR-AZ Executive Director Imraan Siddiqi. "This is further evidence that the state law attempting to chill free speech was problematic from its onset and still needs to be addressed.”
CAIR is America's largest Muslim civil liberties and advocacy organization. Its mission is to protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding.
Arizona State’s Ban On Israel Boycotters Tests DOJ’s Free Speech Commitment
The Council on American-Islamic Relations (CAIR) filed a lawsuit in federal court last week against Arizona State University, accusing the school of violating Muslim students’ right to free speech and rights to equal protection by enforcing a ban on speakers who call for boycotting Israel.
The suit was filed on behalf of American Muslims for Palestine and its founder, Hatem Bazian, shortly after Arizona State’s Muslim Students Association invited him to speak at what is billed as an “educational event regarding Palestinian perspectives on Middle East conflict” on April 3.
Bazian, a senior lecturer at University of California in Berkeley, said he could not agree to the school’s speaker’s contract because of a “no boycott of Israel” clause that essentially bars him and others from participating “solely because they engage in and advocate for economic boycotts of Israel as a means to promote Palestinians’ human rights,” according to the lawsuit.
The suit contends that the Arizona law behind the clause “constitutes viewpoint discrimination that chills constitutionally protected political advocacy on behalf of Palestine.” That law prohibits activity backing the boycott, divestment and sanctions movement against Israel and in support of Palestinian rights.
The suit poses a test for the Trump administration. Attorney General Jeff Sessions has made protecting free speech at public universities a top priority for the Department of Justice. In September, Sessions decried
what he termed the transformation of U.S. colleges from centers of academic freedom into “an echo chamber of political correctness and homogenous thought, a shelter for fragile egos.”
Sessions said a “national recommitment to free speech on campus is long overdue,” and said the DOJ would take action to ensure First Amendment rights.
“We will enforce federal law, defend free speech, and protect students’ free expression from whatever end of the political spectrum it may come,” he said
Principal Deputy Associate Attorney General Jesse Panuccio said
in January that the department DOJ wanted “aggrieved students and faculty to know” that it “is open for business” on the free speech issue and would “welcome notifications about pending lawsuits and invitations to get involved.”
So far, at least, DOJ’s involvement in such cases has been confined to legal challenges filed by conservatives and Christians. DOJ intervened on behalf of a Christian evangelist who was barred
from passing out religious materials outside a so-called free speech zone at Georgia Gwinnett College, and in another case
involving a libertarian student who tried to hand out copies of the U.S Constitution outside such a zone at Los Angeles Pierce College.
In January, DOJ filed
a statement of interest in a case filed on behalf of the Berkeley College Republicans and Young America’s Foundation, saying that UC Berkeley policies granted administrators “unfettered discretion” to implement excessive hurdles to campus appearances by controversial speakers.
A spokesman for the Justice Department declined to comment to HuffPost on the lawsuit against Arizona State University.
In the past three years, more than a dozen states
have passed laws aimed at thwarting the boycott, divestment and sanctions movement (BDS) against Israel. In October 2017, a suburb outside of Houston required residents affected by Hurricane Harvey
to certify that they do not boycott Israel in order to apply for grant money to rebuild their homes. That same month, the American Civil Liberties Union filed a federal lawsuit
on behalf of a Mennonite math teacher in Kansas who was not hired after she refused to certify
that she did not boycott Israel.
In a victory for the ACLU, a federal judge issued a preliminary injunction blocking the enforcement
of Kansas’ anti-BDS law earlier this year. It was the first ruling to address such laws.
The Arizona statute, passed in 2016
, says that “a public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.”
Arizona Attorney General Mark Brnovich (R) has touted
his defense of the law, which has already faced a lawsuit
from the American Civil Liberties Union that is pending in federal court.
Imraan Siddiqi, the executive director of CAIR-Arizona, told HuffPost that it was important to challenge anti-BDS laws because of the long term effects they could have.
“If we are allowing this to happen on a local and state level, then who is to say this is not going to happen on a federal level. When an issue like this comes up, you have to stand up as soon as the opportunity comes,” Siddiqi said. “Universities have been a beacon of free speech and thought and that is what they have been for all these years, but only certain students are afforded that right to free speech.”
Supporters of the BDS movement argue the boycott is a peaceful way to oppose Israel’s decades long occupation of the Palestinian territories. Critics argue the boycott is an anti-Semitic effort to delegitimize the state of Israel.
Those backing anti-BDS law portray economic boycotts against Israel as a form of discrimination. Brnovich contended
that Arizona’s law “augments the state’s existing prohibition on discrimination based on national origin.”
Boycotting a country and companies from that country, of course, is different from discriminating against people of a certain national origin. Sanctions against other countries ― such as sanctions against Iran for example ― do not amount to national origin discrimination.
Additionally, many have argued that boycotting Israel does not equate
to boycotting the Jewish people, since Israel is a state while being Jewish is a religious and ethnic identity.
The bill has not passed, and its opponents include the ACLU.
“No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts,” an ACLU lawyer wrote
Read the lawsuit against Arizona State here
University in US demands academic to disavow anti-Israel group
Leading Muslim organization sues Arizona State University for demanding speakers undertake not to criticize Israel
14:47 March 08, 2018
Last year, in the wake of Hurricane Harvey, a contract for Texas government’s disaster aid that linked the assistance to support for Israel caused widespread controversy as residents were recovering from one the most powerful hurricanes ever to hit Texas.
Less than two months after Hurricane Harvey ravaged the city of Dickinson, southeast of Houston, the local authority insisted that anyone who received relief supplies should confirm that they were not in any way engaged in the boycott of Israel.
Amid the devastation, the city’s imposition of anti-boycott certification angered those campaigning for a boycott of Israeli goods over its occupation of Palestinian lands.
After passing a bill to prohibit any type of boycott against Israel, Arizona State, a prominent Texas university, followed through with its plan and put the bill into effect even though this was a violation of the First Amendment, which guarantees freedom of speech.
Hatem Bazian, a Muslim academic invited by the Muslim Student Association of Arizona State to speak at an event in April, was required by the university to sign a contract that would prevent him from criticizing Israel.
"I was invited to speak at Arizona State University and they sent me a contract to sign with various items," Dr. Bazian, a professor of Near Eastern and Asian American Studies and Asian Diaspora Studies at the University of California, Berkeley, told Anadolu Agency on Wednesday.
He said one of the articles clearly meant a prohibition on boycotting Israel and assurance that the undersigned was currently not engaged in a boycott of Israel.
"I said that I cannot sign this in full conscious, being one of the key BDS (The Boycott, Divestment and Sanctions Movement which promotes various forms of boycott against Israel) organizers, an academic who writes on BDS, and an activist on Palestine that holds BDS to be a non-violent human rights movement focused on addressing Israel's continued violations of international law," he added.
Last year in May, Texas Gov. Greg Abbott signed the state's anti-BDS bill, saying "Anti-Israel policies are anti-Texas", thereby setting the stage for a greater controversy to unfold.
A bill in Congress to criminalize BDS support with likely legal consequences such as 20 years in prison and up to $1 million in penalties has sputtered amid widespread backlash. The Senate sponsors of the bill are seeking to amend it.
Israeli lobby defends the indefensible
Bazian, who is also a columnist for the Turkish newspaper Daily Sabah, said AIPAC (American-Israel Public Affairs Committee) and its regional affiliates "worked overtime" to push for legislation across the U.S. to restrict free speech on BDS and even to criminalize advocacy for Palestinian human rights.
Slamming the legislation for attempting to "defend the indefensible" by restricting freedom of speech and academic freedom, Bazian said the purpose of the effort was to rescue and protect Israel and its continued occupation through “the use of legislation, targeting individuals, structured and systematic defamation as well as working to recruit voices that normalize Zionism among segments of Arab and Muslim communities through the Shalom Hartman Institute Muslim Leadership Initiative and fictitious interfaith projects that are focused on silencing Palestine.”
Lawsuit against Arizona State University
A leading Muslim advocacy group, the Council on American-Islamic Relations (CAIR) has sued the university for demanding professors to disavow BDS before allowing them to speak on its premises.
Speaking to Anadolu Agency, Gadir Abbas, an attorney of CAIR, said the contract presented to Hatem Bazian was against the U.S. constitution and the university illegally blocked him from speaking on campus because of his political beliefs.
Abbas said the U.S. was considered one of the biggest champions of freedom of expression, but the contract that Arizona State University had imposed was not in line with that spirit, adding that that was the reason why the advocacy group filed a lawsuit against the university.
The lawsuit has been filed in the name of Dr. Bazian and a verdict is expected in April.
In addition to the Bazian case, there are at least three known cases regarding the University of Houston, which also reportedly required such a disavowal from its own members, as well as visiting speakers.
The state of Kansas also attempted to adopt a similar law last month in order to prohibit boycotts against Israel. A federal judge in Kansas, however, blocked the proposal.
The Council on American-Islamic Relations (“CAIR”) has filed a lawsuit over Arizona State University’s observance of a state law barring economic boycotts of Israel.
Acting as litigators, CAIR’s 16-page complaint
is filed on behalf of plaintiffs American Muslims for Palestine and Dr. Hatem Bazian
The lawsuit alleges Arizona State University (“ASU”), the Arizona Board of Regents and Arizona Attorney General Mark Brnovich acted in violation of the First Amendment by forcing compliance with a statute prohibiting public entities from entering into contracts with persons or companies who boycott Israel. Meanwhile, officials at ASU say the lawsuit stems from a basic misapprehension regarding the law’s relevance to Bazian’s planned speech.
The lawsuit notes, “The conflict between Israel and Palestine is a longstanding issue of considerable public concern, both in the United States and internationally, to which politicians, professionals, and the press dedicate considerable energy and resources. In 2016, the State of Arizona chose to categorically take Israel’s side in this international conflict by adopting Ariz. Rev. Stat. § 35-393
. This Act bars the State of Arizona from entering into government contracts with companies or persons who engage in or advocate for economic boycotts of Israel.”
Laws and stipulations like this effectively prevent people like @HatemBazian
from expressing their first amendment rights on campus, therefore we are ensuring that their rights are protected and stand together with them on this lawsuit.
According to the lawsuit, “On February 22, 2018 the Muslim Students Association of Arizona State University invited American Muslims for Palestine and Dr. Hatem Bazian to speak at an April 3, 2018 educational event regarding Palestinian perspectives on Middle East conflict, including the Boycott, Divestment and Sanctions Movement.” The lawsuit continues:
Because of the Act, however, Arizona State University’s standard outside speaker contract was amended in 2016 to contain a “No Boycott of Israel” clause. American Muslims for Palestine and Dr. Hatem Bazian cannot agree to that clause. They are therefore barred from presenting at the April 3, 2018 campus event solely because they engage in and advocate for economic boycotts of Israel as a means to promote Palestinians’ human rights.
Officials at ASU say it’s all a big misunderstanding. In response to an earlier inquiry, ASU’s Associate Vice President Bret Hovell provided Law&Crime with the following statement, reproduced here in full:
This morning, The Arizona Board of Regents and Arizona State University were alerted via a media inquiry to a lawsuit being filed by the Arizona chapter of the Council on American-Islamic Relations.
ASU would have been happy to clear up this simple misunderstanding before a lawsuit was filed.
State law requires:
“A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.”
This is reflected in ASU’s standard provision on this topic, as required for public entities under state law.
However, ASU does not believe that this law applies to this kind of engagement because the contract was to be with a student group. Student groups are not public entities. It was a simple mistake that the ASU form containing the certification was used. The certification was not needed.
Law&Crime additionally reached out to Arizona Board of Regents for comment, but no response was forthcoming at the time of publication.
Editor’s note: this article was amended post-publication in order to incorporate and reflect information provided to Law&Crime by officials at Arizona State University.
Arizona State Legislature
In this article, unless the context otherwise requires:
1. "Boycott" means engaging in a refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with Israel or with persons or entities doing business in Israel or in territories controlled by Israel, if those actions are taken either:
(a) In compliance with or adherence to calls for a boycott of Israel other than those boycotts to which 50 United States Code section 4607(c) applies.
(b) In a manner that discriminates on the basis of nationality, national origin or religion and that is not based on a valid business reason.
2. "Company" means a sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company or other entity or business association, and includes a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate.
3. "Direct holdings" means all publicly traded securities of a company that are held directly by the state treasurer or a retirement system in an actively managed account or fund in which the retirement system owns all shares or interests.
4. "Indirect holdings" means all securities of a company that are held in an account or fund, including a mutual fund, that is managed by one or more persons who are not employed by the state treasurer or a retirement system, if the state treasurer or retirement system owns shares or interests either:
(a) Together with other investors that are not subject to this section.
(b) That are held in an index fund.
5. "Public entity" means this state, a political subdivision of this state or an agency, board, commission or department of this state or a political subdivision of this state.
6. "Public fund" means the state treasurer or a retirement system.
7. "Restricted companies" means companies that boycott Israel.
8. "Retirement system" means a retirement plan or system that is established by or pursuant to title 38.