CMEIL Scores Win With 5th Circuit’s Dismissal of Challenge to Texas Anti-BDS Law

On April 29, 2020, the United States Court of Appeals for the Fifth Circuit vacated a preliminary injunction against Texas’s “Anti-BDS Law,” House Bill 89. In its opinion, the Court accepted justiciability arguments laid out in an amicus brief of a group of law professors that the Center helped organize. The decision may be found here,while the brief may be found here.

The Texas statute prohibits state agencies from contracting with businesses or individuals who boycott Israel, defining boycott as “refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory.” Tex. Gov’t Code § 808.001(1). Most states have adopted such laws in recent years, and they have been the subject of several legal challenges.

Last fall, the Director of the Center for the Middle East and International Law (CMEIL), Professor Eugene Kontorovich, organized a group of eleven professors to join an amicus brief urging the Fifth Circuit to overturn the decision of the district court, which had deemed the Texas anti-BDS statute H.B. 89 unconstitutional. The distinguished amici included Eugene Kontorovich, Professor of Law and Director of CMEIL at the Antonin Scalia Law School at George Mason University; David Bernstein, Professor of Law and Executive Director of the Liberty and Law Center at the Antonin Scalia Law School at George Mason University; Richard A. Epstein, Laurence A. Tisch Professor of Law at the New York University School of Law and Senior Fellow at the Hoover Institution; Professor Jesse M. Fried, the Dane Professor of Law at Harvard Law School; Tonji Jacobi, the Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law at Northwestern University Pritzker School of Law; Julian Ku, Faculty Director of International Programs and the Maurice A. Deane Distinguished Professor of Constitutional Law at the Maurice A. Deane School of Law at Hofstra University; Jeremy A. Rabkin, Professor of Law at the Antonin Scalia Law School; Maimon Schwarzschild, Professor of Law at the University of San Diego; Steven Davidoff Solomon, Professor of Law and Faculty Director of the Berkeley Center for Law and Business at University of California – Berkeley School of Law; Alexander Tsesis, Raymond & Mary Simon Chair in Constitutional Law and Professor of Law at the Loyola University School of Law; and Louise Weinberg, Professor of Law at the University of Texas Law School.

The brief, written by CMEIL Fellow Jerome Marcus and Adam Charnes of Kilpatrick Townsend & Stockton LLP, argued three main points: (1) that the plaintiff’s claim is moot because recent amendments to the Texas statute mean the statute no longer applies to the plaintiff; (2) that, even if the claim were not moot, the economic activity regulated by the original statute does not constitute protected speech under the First Amendment; and (3) that, if the Fifth Circuit were to affirm that such economic activity is protected speech, it would jeopardize the survival of numerous federal and state anti-discrimination laws.

The Fifth Circuit accepted the first contention, and thus did not have to rule on the merits. Nonetheless, it did refer to the amicus briefs to note that the merits are indeed “complex,” running contrary to the claim of the ACLU, which has presented plaintiffs’ in these challenges, declaring that the laws are “obviously unconstitutional.”

The brief itself offers a blueprint for addressing First Amendment challenges to anti-BDS legislation not only by underscoring the weaknesses of the First Amendment arguments against the laws but also by pointing out the ethical and practical considerations associated with overturning anti-BDS legislation.