How Minnesota muzzles free speech on Israel

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Peaceful political boycott is not just a longstanding American tradition, it is a free speech right protected under the First Amendment to the U.S. Constitution.

The exercise of the right to boycott has a rich American history including the Montgomery Bus Boycott, the United Farm Workers grape boycott and the commercial, cultural and sports boycott of apartheid South Africa, among many others.

But this right is under attack. In Minnesota. Since 2017, the right to boycott has been restricted by two laws, Minnesota Statutes 3.226 and 16C.053, requiring state contractors to certify that they will not participate in political boycotts of Israel. Only Israel.

A review of 13,000 contracts and grants issued by Minnesota in the last two years reveals that all contractors and grantees for contracts or grants over $50,000 have been required to sign away their rights by certifying that they would not boycott Israel. The list of contractors and grantees includes numerous small and medium-sized businesses and nonprofits for whom a state contract or grant might be an essential part of their budget. The list includes Native American organizations, social service agencies, legal aid services, medical clinics and more.

These companies and nonprofits may have signed the certifications unwillingly, afraid of jeopardizing their contracts with the state, or they may have not noticed that the provision prevents them from exercising their free speech rights. But the laws restricting free speech open the door to other laws requiring contractors to forfeit the right to engage in any form of political boycott in exchange for a government contract or grant. Contractors could be required to certify they will not boycott the firearms or fossil fuel industry, or businesses that discriminate based on race or gender identity, or that deny reproductive health care insurance to their employees.

This attack on the constitutional right to boycott is metastasizing across the country and poses an imminent threat to the freedom of speech of all Americans. Copycat laws seeking to greatly expand prohibitions against a variety of political boycotts as a condition to receiving a government contract or grant have been introduced in several states, and some have passed.

The lobbyists and legislators who helped enact Minnesota Statutes 3.226 and 16C.053 did so as a way to undermine the international Boycott Divest Sanction (BDS) movement. BDS is a nonviolent response to Israel's human rights violations against Palestinians. These violations include land and water dispossession, denial of civil rights, collective punishment and discrimination. The stripping away of the independent judicial review powers of the Israeli Supreme Court, which Israel's current authoritarian-leaning government is presently doing and which the Star Tribune's Editorial Board has called "ill-advised" and "self-serving," will exacerbate these violations.

The U.S. Constitution is not on the side of Minnesota's anti-boycott laws. The Supreme Court has held that the government may not impose a political litmus test on the receipt of a government contract or benefit (O'Hare Truck Service v. City of Northlake, 1996). Moreover, since the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware, political boycotts have been considered explicitly protected free speech under the First Amendment.

Consistent with these decisions, federal courts in four states have declared anti-boycott laws unconstitutional under the First Amendment. But there is one outlier. In 2018, the Arkansas newspaper Arkansas Times refused to make the anti-boycott pledge as a condition for receiving advertising revenue from the state of Arkansas and sued. In ruling against the newspaper, the Eighth Circuit Court of Appeals — considered the most politically conservative among the federal circuit courts — declared that political boycotts are not protected by the First Amendment, challenging the precedent established by the U.S. Supreme Court in NAACP v. Claiborne Hardware.

The Supreme Court recently declined an opportunity to review this Eighth Circuit decision. Until the U.S. Supreme Court eventually settles the discrepancy, Minnesotans should look to Article 1, Section 3 of the Minnesota Constitution. Unaffected by the Arkansas Times decision, it guarantees free speech "on all subjects."

It's time to push back and defend the constitutional right of all Minnesotans to engage in political boycotts as a longstanding and richly historical form of nonviolent protest and free speech.

Phil Benson, of Watertown, Minn., is a member of Friends of Sabeel, North America. Sylvia Schwarz, of St. Paul, is a member of Jewish Voice for Peace.