Residents of Dickinson, Texas recently got a bit of an unpleasant surprise in the form of a bizarre clause in the city’s Hurricane Harvey Repair Grant Application and Agreement. That document is the gateway to getting the funds these good people need to repair or rebuild their storm-damaged homes and businesses. Of course, there are always rules to such things, even when it comes to disaster relief. For example, you must agree to spend the money on your rebuilding efforts, not a vacation. Additionally, you must agree to follow building codes and get permits. So, what is so bizarre in this case? Those seeking relief funds must agree that they will refrain from boycotting Israel, effectively being forced to choose between disaster relief and their First Amendment right to participate in a politically-motivated boycott.
What’s behind this bizarre clause? In an interview with Bustle, Dickinson’s mayor, Julie Masters, said it’s all about state law. Let’s look to Governor Greg Abbott for more information. According to Gov. Abbott’s website, “Anti-Israel policies are anti-Texas policies, and we will not tolerate such actions against an important ally.” The governor voiced that opinion in July, when he signed House Bill 89 into law.
The pro-Israel law effectively forbids receipt of state funds by any business supporting or participating in the Palestinian-led Boycott, Divestment, and Sanctions (BDS) campaign. The governor’s view is that Israel is too important a trading partner to allow any actions that could negatively impact it financially. This includes simply refusing to purchase items manufactured in Israeli settlements on Palestinian land; these hotly contested areas are considered “Israel-controlled territory.”
Noticeably absent, at least to this writer, is a clause in HB 89 prohibiting private citizens from receiving state funds, in this case, disaster relief, unless they agree not to boycott Israel.
The American Civil Liberties Union (ACLU) has taken umbrage at the boycott clause, too. Andre Segura, Legal Director for the ACLU of Texas, said the clause is “an egregious violation of the First Amendment, reminiscent of McCarthy-era loyalty oaths requiring Americans to disavow membership in the Communist party and other forms of ‘subversive’ activity.”
Brian Hauss, ACLU Staff Attorney, told Bustle that even if Dickinson residents are not denied relief funds, “We believe that the requirement is wildly unconstitutional. Anybody who is forced to sign the certification regarding their First Amendment protected beliefs, expression, and association has had their constitutional rights violated regardless of whether or not they’re engaged in the underlying activity or whether or not they’re going to be penalized for participating in it. It is unconstitutional for the government to ask this question as a condition of granting benefits.”
Upon what is the ACLU basing its argument?
In 1982, the U.S. Supreme Court handed down a ruling in NAACP v. Claiborne Hardware Co. that held political boycotts to be a First Amendment protected form of free expression and association. In that case, certain white vendors in Claiborne County, Mississippi sued for lost earnings after several organizations and individuals boycotted them.
There is no difference between the boycott in the 1982 case and the BDS campaign at issue in Texas. Sadly, despite a SCOTUS ruling on the issue, some people are still pushing the envelope, seeing how much they can get away with before the hammer falls.
The BDS campaign is also an issue in Kansas, due to a state law akin to HB 89. The ACLU has filed suit there on behalf of a teacher who boycotted certain companies that conduct business with Israel. She did so based on guidance from her Mennonite Church, pertaining to Israel’s Palestinian occupation.
There is a greater, if not as immediate, concern with such laws than the delay or denial of disaster relief funds. According to Mr. Hauss, “In terms of enforcement, what I think is really pernicious about these laws is they’re designed to scare people. If you’re thinking about participating in one of these boycotts but you need access to disaster relief, for example, the easier answer is just not to do it and to sign the form and just not participate in the boycott or keep quiet about it and not be vocal about your political beliefs and why you’re engaging in this boycott. That sort of chill is exactly what the first amendment is meant to protect from happening.”
The fact that there is a more immediate concern – rebuilding after Hurricane Harvey – makes such a clause even worse. Not only are insurers being slow to pay for various reasons, but now the residents of Dickinson have to contend with political posturing in the form of HB 89.
In a separate interview given to The Intercept, Mr. Hauss said, “It is absolutely unconscionable for state and local governments to impose political litmus tests on disaster relief funds for people devastated by Hurricane Harvey. In this case, the City of Dickinson seems to be enforcing a Texas law that requires any state contractor, apparently including disaster relief recipients, to certify that they are not participating in boycotts of Israel. Like the law we challenged in Kansas, Texas’s law clearly violates the First Amendment. The government should not be denying disaster relief funds based on people’s political beliefs. We urge anyone asked to sign this certification to contact the ACLU of Texas.”