Georgia Judge Rules Anti-BDS Law a Violation of First Amendment Rights
A federal judge has ruled in favor of filmmaker and journalist Abby Martin in a lawsuit that found Georgia's anti-BDS law unconstitutional. Martin, who was set to be the Keynote speaker at a university event, alleged her rights were violated after she declined to sign a contractual agreement that stipulated she would promise not to participate in activities that would be harmful to the Israeli economy.
According to Martin, Georgia Southern University and its officials violated her First Amendment rights after she refused to sign an agreement form for her participation in the event that included a clause regarding the boycotting of Israeli goods. The controversial clause is a legal measure in Georgia that stipulates that individuals will promise that they will not participate in boycotting, divesting, and sanctioning movements (BDS) that cause harm to the Israeli government and their economy.
Similar measures have been passed in at least 23 other states, and due to the rise in conflict between Israelis and Palestinians, this controversial law has found itself in the national spotlight yet again.
According to court documents, the clause in Martin’s agreement read in part, "You certify that you are not currently engaged in, and agree for the duration of this agreement not to engage in, a boycott of Israel, as defined in O.C.G.A. Section 50-5-85.” The agreement defines the law as “engaging in refusals to deal with, terminating business activities with, or other actions that are intended to limit commercial relations with Israel or individuals or companies doing business in Israel or in Israel controlled territories.”
After being asked to sign the agreement in order to speak at the event, Martin responded by telling the event officials, "I'm sure you know, a lot of my work advocates the boycott of Israel, and my new film features that call to action. I cannot sign any form promising not to boycott Israel.” Martin’s lawsuit explains that after having expressed her moral inability to sign the agreement, she “was deprived of her ability to speak on the GSU campus, to receive the [$1,000] honorarium, and to showcase her work.”
In the decision that was handed down late last week, U.S. District Court Judge Mark Cohen sided with Martin, ruling that the law "prohibits inherently expressive conduct protected by the First Amendment, burdens Martin's right to free speech, and is not narrowly tailored to further a substantial state interest." Judge Cohen adds in the 29-page opinion, “The certification that one is not engaged in a boycott of Israel is no different than requiring a person to espouse certain political beliefs or to engage in certain political associations.”
After the ruling, Martin expressed her support of the ruling stating in part that she was, “thrilled at the judge’s decision to strike down this law that so clearly violates the free speech rights of myself and so many others in Georgia. My first amendment rights were restricted on behalf of a foreign government, which flies in the face of the principle of freedom and democracy.”
While the courts ruled that Martin’s rights were violated after she refused to sign the contract, defenders in other states argue that the anti-BDS measures do not put limitations on free speech. When a similar measure was challenged in Ark Times LP v. Waldrip in Arkansas in 2019, a federal judge argued that the phrase “other actions… intended to limit commercial relations with Israel” is not meant to describe free speech, but rather used to define “commercial conduct” as in the sale of goods.
Just recently, however, in an appeal in the 8th Circuit court, the Arkansas measure was reversed with the resolution that the law "restricts government contractors' ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne." Even if those activities don't include politically motivated economic decisions, they surely include peaceful advocacy of such choices.
While Martin’s rights were established to have been violated, it’s not clear whether or not Judge Cohen will strike down the statewide law that requires state contractors to agree to such a pledge. The Council on American Islamic Relations (CAIR) represented Martin in the lawsuit, and senior attorney of the group Gadeir Abbas expressed of the ruling, "Israel's latest violent onslaught against Palestinians underscores the importance of advocacy for Palestinian human rights." Abbas adds, "By standing up against this illegal anti-BDS law, Abby Martin ensures that all Americans have the freedom to stand up for Palestine." CAIR has represented several other individuals who have filed lawsuits against similar measures in Arizona, Kansas, and Texas and have found success.
