Judge Rules Texas Anti-BDS Law Unconstitutional

A US district court judge in Loredo, Texas, issued a ruling on Friday, January 28, that blocks the state of Texas from enforcing its anti-BDS law against a Houston engineering firm, Axios reported.

Rasmy Hassouna, a Palestinian-American contractor who is the owner of Houston-based A&R Engineering and Testing Inc., had previously contracted with the city of Houston for 17 years and the company has done more than two million dollars of business with Houston over the last 20 years. Lawyers for the city of Houston have demanded that Hassouna sign a pledge to agree to its terms prohibiting any BDS activity.

A&R Engineering and Testing Inc. filed suit in October, arguing that the state’s anti-boycott law violated the First Amendment. “Texas’s ban on contracting with any boycotter of Israel constitutes viewpoint discrimination that chills constitutionally protected political advocacy in support of Palestine,” the complaint asserted.

U.S. District Court Judge Andrew Hanen agreed and placed an injunction on the state, saying that it violated the First Amendment rights of Hassouna.

“The speech contemplated by [Rasmy’s company] may make some individuals — especially those who identify with Israel — uncomfortable, anxious, or even angry,” Hanen wrote in the ruling. “Nevertheless, speech — even speech that upsets other segments of the population — is protected by the First Amendment unless it escalates into violence and misconduct.”

“This is a major victory of the First Amendment against Texas’s repeated attempts to suppress speech in support of Palestine,” said Gadeir Abbas, Senior Litigation Attorney for Council on American-Islamic Relations (CAIR). “These regressive attempts to create a Palestine-exception to the First Amendment betray the central role boycotts have played in our history.”

At this preliminary stage, the injunction applies only to this case.

Eugene Kontorovich, an Israel supporter and a professor at the Antonin Scalia Law School at George Mason University, told Hamodia that the he believes this ruling was based on the judge’s misinterpretation of the Texas law, and that it doesn’t augur the unconstitutionality of the anti-BDS laws that exist in many states nationwide.

“Despite the spin, the judge actually upholds the fundamental constitutionality of the approach taken by anti-BDS laws in over 30 states,” Kontorovich said. “The court holds that refusing to do business with people because of their connection with Israel is not protected speech — it is the kind of discriminatory business conduct that the state can regulate. However, the court misinterpreted some vague language in the statute as even prohibiting protests and rallies — which was never the intent of the law. But that misunderstanding can easily be clarified on appeal or even by the legislature.”