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Arizona State’s Ban On Israel Boycotters Tests DOJ’s Free Speech Commitment

WASHINGTON ― A lawsuit against one of America’s largest public universities could pose a major test for the Justice Department’s commitment to campus free speech.

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.

Just last year, though, a bill was introduced in Congress that would punish those who boycott Israel. The Senate’s Israel Anti-Boycott Act would make it a felony to choose not to engage in business deals with Israeli companies and products produced from illegal settlements in the occupied Palestinian territories. The measure calls for civil penaltiesof up to $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.  

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 last year.

Read the lawsuit against Arizona State here.

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