Letter to the Editor: Anti-BDS Legislation is Unconstitutional


On October 23, 2017, the state of Maryland became the 23rd state to prohibit government contracts to companies that engage in boycott, divestment, and sanctions against Israel. The Supreme Court ruled in 1982 that political boycotts are protected by the First Amendment. It is therefore my opinion that Anti-BDS (boycott, divestment, and sanction) legislation is unconstitutional.

On October 17, 2017, the American Civil Liberties Union (ACLU) representing Kansas math teacher Ester Koontz, filed a federal lawsuit. The Kansas State Department of Education would not allow Ms. Koontz to participate in a statewide training program run by the Kansas Department of Education because she would not sign a form requiring her to certify that she “is not currently engaged in a boycott of Israel.” Fortunately, on January 31, 2018, the ACLU secured an important first victory in their effort to get the federal district court in Kansas to preliminarily block enforcement of House Bill 2409 that requires state contractors, like ACLU plaintiff Ester Koontz, to certify that they are not engaged in boycotts against Israel.

Boycott, divestment and sanctions (BDS) as a movement, was formed on July 9, 2005 by Palestinian civil society organizations as a form of non-violent pressure on Israel. For nearly 70 years, Israel has denied Palestinians their fundamental rights and has refused to comply with international law. According to bdsmovement.net, the BDS movement calls for Israel to comply with international law by meeting with three demands. (1) ending its occupation and colonization of all Arab lands – International law recognizes the West Bank including East Jerusalem, Gaza and the Syrian Golan Heights as occupied by Israel. (2) Recognizing the fundamental rights of the Arab Palestinian citizens of Israel to full equality – one-fifth of Israel’s citizens are Palestinians who remained inside the armistice lines after 1948. They are subjected to a system of racial discrimination incorporated in more than 50 laws that impact every aspect of their lives. (3) Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194. Since its establishment in 1948, Israel has set out to control as much land as possible and displace Palestinians simply because they are not Jewish. Currently, there are more than 7 million Palestinian refugees.

Opponents of BDS claim that the global campaign is Anti-Semitic and seeks to delegitimize Israel, denying the Jewish people the universal right of self- determination. What about the universal right of self- determination for the Palestinians?

Maryland Senator Ben Cardin on March 23, 2017 introduced a bill called the Israel Anti- Boycott Act. Although this bill has been revised, amended by Sens. Ben Cardin (D-Md) and Rob Portman (R-Ohio), the original bill called for a minimum civil penalty of $250,000.00 and a maximum criminal penalty of $1million and 20 years in prison for anyone violating any of its prohibitions. Although the revised bill does not mention jail time, it still violates the First Amendment. It unconstitutionally penalizes Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories. This latest version would still allow people who boycott Israel to be slapped with criminal financial penalties by criminalizing participation in constitutionally protected boycotts. Companies who boycott Israel in states with Anti- BDS laws are deemed prohibited from investment.
On March 18, 2018 the ACLU sent a letter to the Senate opposing the revised version of the Israel Anti-Boycott Act that would criminalize supporting certain boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories.

In contrast to the position of the ACLU, those who favor the bill say nobody is being forced to do business with Israel; they are being prevented from cooperating with entities hostile to a close ally. Maryland Gov. Larry Hogan expressed a similar stance when he signed an executive order in October 23, 2017 that prohibits the state from doing business with companies engaged in a boycott of Israel.

Unfortunately, such attitudes and the resulting executive orders and proposed legislation prevent companies and individuals from having freedom of choice with whom to conduct business. In my opinion, any restriction on individual freedom of choice violates the values that were written in our Constitution and protected by the First Amendment.

Don Kempel
Church Hill

About Dave Wheelan


Letters to Editor

  1. Gren Whitman says

    Here’s a sidebar: Bjørnar Moxness, a member of Norway’s parliament, has nominated the Boycott, Divest, and Sanctions movement for a Nobel Peace prize.
    Thank you for this letter. High time for the tail (Israel) to stop wagging the dog (U.S.)!

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