by GLENN GREENWALD
A federal court in Texas issued a ruling on Thursday afternoon preliminarily enjoining enforcement of Texas’ law banning contractors from boycotting Israel. The court ruled that the law plainly violates the free speech guarantee of the First Amendment. Following similar decisions by federal courts in Kansas and Arizona, the ruling becomes the third judicial finding – out of three who have evaluated the constitutionality of such laws – to conclude that they are unconstitutional attacks on the free speech rights of Americans.
.he case was brought by Bahia Amawi, a longtime elementary school speech pathologist in Austin, Texas, whose contract renewal was denied due to her refusal to sign an oath certifying that she does not participate in any boycotts of Israel. In December, The Intercept was the first to report on her case and the lawsuit she brought, and also produced a video documenting her story.
Amawi, a U.S. citizen and mother of four U.S.-born children, was required to sign the pro-Israel oath due to a new law enacted with almost no dissent by the Texas State Legislature in May 2017, and signed into law two days later by GOP Gov. Greg Abbott. When signing the bill, Gov. Abbott proclaimed: “Any anti-Israel policy is an anti-Texas policy.”
But this was precisely the mentality, along with the virtually unanimous pro-Israel sentiment in the Texas State Legislature, that the Texas federal judge identified when explaining why the pro-Israel oath so blatantly violates the free speech guarantees of the U.S. Constitution’s First Amendment:
In Texas, only five legislators voted against H.B. 89. (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 4). Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). “[T]he purpose behind the Bill of Rights, and of the First Amendment in particular[,]” is “to protect unpopular individuals from retaliation—and their ideas from suppression—at the hands of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).
Thus, “our citizens must tolerate insulting, and even outrageous, speech” in public debate. Boos, 485 U.S. at 322. They must do so “in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.” Id. (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). 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.” Turner, 512 U.S. at 641. This the First Amendment does not allow.
The ruling, issued by U.S. District Court Judge Robert Pitman, categorically rejected each of Texas’ justifications for the law. Judge Pitman was particularly emphatic that the law was not merely “government speech” in defense of Israel, but rather a classic embodiment of what the First Amendment, at its core, was designed to prevent: punishment imposed on those who disagree with the majority’s political opinions on hotly contested political topics. The attack on free speech, explained the court, was manifest from the text of the law itself:
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