Remember the “don’t boycott Israel” bill?

A Texas law prohibits governmental entities, like school districts, from issuing contracts to companies of a certain size unless the company promises not to boycott Israel. This law has been the subject of much litigation that the Dawg has reported.  The latest comes from a federal court in Houston. The suit was filed by A&R Engineering and Testing, a company that had been doing business with the City of Houston.  The owner of the company was a Palestinian who had grown up in the Gaza Strip.  He believed that Israel’s occupation of that territory was illegal, and he refused to contract away his right to say so, or to take economic action, such as a boycott, that would support his view.   He asked the court to declare the “don’t boycott Israel” law to be unconstitutional

The court’s decision is well reasoned and clear, and can best be summarized in a few bullet points. 

*The court held that a boycott, by itself, was not the kind of “expressive conduct” that is protected by the First Amendment.  A boycott is action, rather than words, and it would be difficult for anyone to know why the boycott is happening unless the boycott was accompanied with an explanation. So the court refused to shoot down the entire statute.

*However, the statute includes a “residual clause” that prohibits “any action intended to penalize, or inflict economic harm” on Israel.  The court held that this swept too broadly. The term “any action” could include picketing, giving speeches or encouraging others to boycott Israel. These are “expressive activities” that are protected by the First Amendment.  The court issued an injunction to prohibit the City of Houston from including the “residual clause” in any contract it offers to A&R Engineering.

*Because the record before the court was a bit skimpy, the court refused to grant a statewide injunction.  It limited the injunction to the particular plaintiff in this case and the particular contract he had with the City.  So the “residual clause” can be included in contracts issued by school districts.

It’s A&R Engineering and Testing, Inc. v. City of Houston, decided by the federal court for the Southern District of Texas on January 28, 2022.  It’s published at 2022 WL 267880.


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Tomorrow: Toolbox Tuesday!!