The Dissent NewsWire has reported on bills across the country aimed at deterring individuals from engaging in Constitutionally protected political speech about Israel’s human rights policies towards the Palestinian people. This includes the long and windy saga of California’s own such bill, AB 2844, which is on its way to the Governor’s desk and could become law at any minute.
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AB 2844, originally titled the Combating the Boycott, Divestment, and Sanctions of Israel
Act of 2016, has gone through a number of changes since the State Assembly’s own legal experts, in an analysis that closely mirrored BORDC/DDF’s, found the bill to be constitutionally suspect.
The original bill would have denied state contracts to companies that support boycotts against Israel that are meant to protest their human rights policies towards the Palestinian people. As BORDC/DDF reminded legislators in a letter, and the Judiciary Committee’s own staff also affirmed in their own analysis, such a provision violates the unconstitutional conditions doctrine. The unconstitutional conditions doctrine states that the government cannot condition a public benefit on refraining from exercising a constitutional right. A government contract is a public benefit. Boycotts for political, economic, and social change are political speech, which receive the highest protections afforded by the First Amendment. By conditioning a contract on the recipient not engaging in political speech, this bill flagrantly ran afoul of the unconstitutional conditions doctrine.
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Instead of accepting defeat and going home, California legislators have made numerous changes to the bill; at one point even temporarily alienating its initial supporters on the grounds that it was no longer sufficiently pro-Israel. The first of these changes was that the bill would ban contracts only with companies that engage in “discrimination in furtherance of a boycott.” While anti-discrimination laws are legitimate tools of public policy, as the Dissent NewsWire noted an analysis of testimony by the bill’s supporters revealed little mention of anti-discrimination law and devoted significant attention to their dislike of Palestinian human rights activism and the impact the bill would have on curbing such activism on college campuses.
The bill was further amended numerous times and the current version headed to the Governor’s desk may be the most bizarre and convoluted version of the bill yet. The bill would not bar anyone from receiving a state contract, but it would make recipients of state contracts answer under the penalty of perjury if they engage in a boycott of a sovereign nation, including Israel (the only sovereign nation mentioned), in a way that violates existing California antidiscrimination law. The California Department of Finance estimates it will cost $140 million to actually implement the bill’s provisions.
California has a right to enact and enforce anti-discrimination laws, but it is entirely unclear what this bill does on this front that already existing anti-discrimination legislation does not do. In fact, it is rather unclear what this bill accomplishes at all, but its supporters are deeply excited about it as they believe it provides them with a weapon against political speech they dislike. Regardless of what the bill does on its face, the intent behind it is to chill political speech and that is how it will be used. In a tactic reminiscent of the House Un-American Activities Committee, people and organizations will be forced to answer confusing questions about their political speech under the penalty of perjury.
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As an organization dedicated to fulfilling the promise of the Bill of Rights for everyone, we don’t take a position on the validity of international human rights boycotts or the Middle East crisis. We do, however, oppose any legislation designed to chill political speech. As such, we opposed AB 2844.