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First Amendment Right to Protest

In 2017, our Texas state senators and representatives voted for, and passed, a law that seriously impacts the rights of anyone entering a contract with a government entity in Texas (all levels of government) to the right to protest or right to free speech.

Initially, it appeared this was a limitation on those of us that live in Texas, but the impact is broader. For example, companies in other states that do business with Texas cities are required to have a provision in the contract verifying it does not boycott Israel. This requirement is found in the Texas Government Code Section 2270.002[1]. Perhaps waiving a basic Constitutional right does not pose much of a challenge for a company or corporate entity but signing this waiver has proven to be a personal sacrifice, and matter of principle for individuals that work in Texas and are paid by Texas governmental bodies.

Two federal lawsuits have been filed on behalf of employees (predominantly teachers) that work for the University of Houston, Pflugerville Independent School District, Klein Independent School District, Lewisville Independent School District, and Texas A&M University.  In order for the five individuals that filed suit to get paid either their salary or contractual payments, Texas law requires a signed provision verifying they will not boycott Israel during the term of the contract. The five individuals chose to stand up to the government, rather than sacrifice their beliefs. In December 2018, a federal lawsuit was filed by the ACLU and other agencies on behalf of the employees against their employers, and Ken Paxton, the Attorney General of Texas seeking relief from the law. Both suits have been combined, and on April 25, 2019, a Federal Judge granted a preliminary injunction against the enforcement of Texas law.

Imagine your employer requiring you to sign such a verification impacting your right to exercise political speech or to hold certain political beliefs in order to get paid. Apparently, nearly all of our elected senators and representatives in 2017 did not recognize the requirement as an infringement on First Amendment rights. Of the 150 Texas state representatives, 131 voted for passage; and of the 26 Texas senators, 21 voted to pass Section 2270 and passed not only this provision but also laws prohibiting the municipal investment of funds with companies that boycott Israel.[2]

The broad impact of the Texas laws was not initially evident, however. In addition to conditions on their pay, state employees are banned from using Airbnb for travel. In November 2018, Airbnb decided to remove listings in Israeli Settlements in the West Bank[3], following criticism by Human Rights Watch, which authored a report titled “Bed and Breakfast on Stolen Land: Tourist Rental Listings in West Bank Settlements.”[4] The company also has removed listings from South Ossetia and Abkhazia, Russian-backed separatist regions that declared independence from Georgia. These areas are subject to U.S. sanctions whereas Israeli settlements in the occupied West Bank are not.

The Texas legislature was persuaded by the politics behind the BDS movement. The BDS movement, “Boycott, Divestment, Sanctions” is meant to end international support for Israel’s oppression of Palestinians, and to pressure Israel to comply with international law.

This week, United States District Judge Robert Pitman reinforced existing U.S. law that boycotting Israel is expressive conduct protected by the First Amendment of the United States Constitution.  The judge wrote the purpose behind the Bill of Rights, and the First Amendment is “to protect unpopular individuals from retaliation—and their ideas from suppression—at the hands of an intolerant society.”[5]  U.S. citizens “must tolerate insulting, and even outrageous, speech” in public debate.”[6] They must do so “in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”[7] Judge Pitman determined: With H.B. 89, Texas compresses this space. The statute threatens “to suppress unpopular ideas” and “manipulate the public debate through coercion rather than persuasion.” [8]

“This the First Amendment does not allow.”

Texas are you listening?

[1] https://statutes.capitol.texas.gov/Docs/GV/htm/GV.2270.v2.htm#2270.002

[2] https://statutes.capitol.texas.gov/Docs/GV/htm/GV.808.htm

[3] https://press.airbnb.com/listings-in-disputed-regions/

[4] https://www.hrw.org/report/2018/11/20/bed-and-breakfast-stolen-land/tourist-rental-listings-west-bank-settlements

[5] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).

[6] Boos v. Barry, 485 U.S. 312 (1988)

[7] Boos (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)).

[8] Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).

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