Maryland Aims to Dismiss Suit Challenging Its Anti-BDS Rule
The fate of Maryland Governor Larry Hogan’s 2017 executive order barring state contractors from participating in the anti-Israel Boycott, Divestment, and Sanctions (BDS) movement is in the hands of a Federal judge. The order violates First Amendment rights, a lawsuit filed by a former Maryland state legislator claims.
Saqib Ali is represented by the Council on American Islamic-Relations (CAIR) Legal Defense Fund. Hogan and Maryland Attorney General Brian Frosh are listed as defendants. US District Judge Catherine C. Blake heard arguments last week concerning a state motion to dismiss the lawsuit.
The international BDS movement aims to isolate Israel through economic, cultural, and academic boycotts and sanctions modeled on the 1980s boycotts against South Africa’s apartheid government. Opponents consider the movement antisemitic because it singles out the world’s only Jewish state for treatment not imposed on other states with much worse human rights records, and because it is reminiscent of the Nazis’ economic warfare against Jewish-owned companies.
Opponents also note the link between the BDS National Committee, which coordinates the movement internationally, and Palestinian terror groups, such as the Popular Front for the Liberation of Palestine (PFLP).
Last month, the US House of Representatives voted 298-17 on a resolution condemning BDS for “encouraging the Palestinians to reject negotiations in favor of international pressure,” and citing BDS leader Omar Barghouti’s statement, “We oppose a Jewish state in any part of Palestine. No Palestinian, rational Palestinian, not a sell-out Palestinian, will ever accept a Jewish state in Palestine.”
BDS “does not recognize, and many of its supporters explicitly deny, the right of the Jewish people to national self-determination,” the resolution said.
Ali, who wants to boycott Israeli companies that make hummus or wine, for example, says the Maryland executive order constitutes discrimination based on ideology, and compels him to pledge that he won’t boycott Israel. State contracts now include a boilerplate “No Boycott of Israel” clause.
“And you know Trump is doing this too, and they’re trying to say that if you have criticism of Israel it’s un-American. … He’s saying they’re bad Americans because they criticize Israel,” Ali said in a news conference CAIR held last week. “It’s crazy and Hogan is doing the same thing. This is a bizarre, frankly weird, obsession with Palestinians that’s pervasive throughout right-wing politics in America, and it’s something that’s got to stop. And it’s got to stop right here in Maryland.”
The order says nothing about barring criticism of Israel, however, and it does not prevent people from protesting against Israel in their private time.
Ali, a software consultant who served in Maryland’s House of Delegates from 2007-2011, added that he also boycotts Saudi Arabia, Myanmar, and North Carolina, because he doesn’t like their civil rights records.
Boycotts are “as American as apple pie,” CAIR Executive Director Nihad Awad said during the news conference, saying anything that infringes on that right violates the First Amendment.
Thursday’s hearing was on a state motion to dismiss Ali’s challenge. Ali never applied for a state contract, the state argues, so he lacks standing to bring the suit. It also contends that his participation in the BDS movement happens on his personal time, and has nothing to do with the services he might render to the state.
The state cast the ban in court as being narrowly focused against those who discriminate against Israelis.
“[The ban] is limited to decisions not to deal with people or companies [because] they are Israeli or reside in Israel because of their national origin,” Adam Snyder, an attorney in the state Attorney General’s office, told the court, The Washington Times reported.
Blake expressed skepticism, saying Snyder’s explanation of the executive order was not clear, based on a plain reading of the text.
Ali supports BDS causes and organized a statewide “Freedom2Boycott in Maryland” in 2014, a statewide grassroots movement to defeat anti-BDS campaigns. Court documents noted that Ali’s campaign helped defeat other anti-BDS legislative proposals in Maryland.
He could leave the “No Boycott of Israel” section of a contract bid blank, Ali’s lawyers wrote, but a section of the executive order would require government agencies to reject his bid.
“The Executive Order also requires all agencies to require holders to certify they do not and will not boycott Israel,” the lawyers wrote.
That’s not so, the state said. The executive order only targets commercial business-to-business activities, not the sort of anti-Israel activities that Ali engages in on his own time.
“The certification does not require that bidders certify that they do not participate in a boycott of Israel in the way that Mr. Ali alleges that he participates in the BDS movement,” Frosh wrote in an April filing, noting the order has nothing to do with Ali’s refusal to purchase Sabra or SodaStream products. “Instead, the certification requires bidders to certify that they have not discriminated against Israelis and Israeli companies in the formation of their bids.”
As a computer programmer, Ali would not likely have to interact with Israeli companies or people and therefore would not be compelled to lie.
Because Ali never submitted a bid, Frosh argued that he lacks standing to challenge the order, and his suit should be dismissed.
A Federal judge struck down a similar Texas anti-BDS law in April, saying it violates the Bill of Rights, which exists “to protect unpopular individuals from retaliation — and their ideas from suppression — at the hands of an intolerant society.” Other anti-BDS acts also have been struck down in Arizona and Kansas, while another in Arkansas was upheld.
CAIR also is fighting a proposed anti-BDS bill in New Jersey.
Many CAIR officials have made stridently anti-Israel comments that cross the line from criticism of the country’s policies into antisemitism. Several have equated Israeli soldiers with ISIS terrorists, while a prominent chapter director said Israel has no right to exist.
CAIR attorney Gadeir Abbas told the Federal judge that no settlement with the state is possible apart from Governor Hogan rescinding the executive order.
John Rossomando is a senior analyst at The Investigative Project on Terrorism.