BILL ANALYSIS Ó
AB 2844
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2844
(Bloom) - As Amended April 11, 2016
SUBJECT: Public contracts: California Combating the Boycott,
Divestment, and Sanctions of Israel Act of 2016
KEY ISSUES:
1)should the state of California refuse to contract with
companies that participate in a boycott against Israel, even
though A boycott is protected speech and denying a benefit
based on the exercise of protected speech is most likely an
unconstitutional condition?
2)ALTERNATIVELY, SHOULD The state of California refuse to
contract with companies that ENGAGE IN DISCRIMINATORY BUSINESS
PRACTICES as opposed to protected speech WHICH WOULD most
likely BE a condition THAT WOULD SURVIVE CONSTITUTIONAL
CHALLENGE?
SYNOPSIS
This bill is a response to the Boycott, Divestment and Sanctions
(BDS) movement, an organized campaign calling upon businesses,
unions, churches, universities, and academic associations, among
others, to divest all funds from Israel, or from any company
that does business in or with Israel. It calls for boycotts of
Israeli goods and products and seeks to prohibit academic and
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cultural exchanges between Israel and the United States. The
most commonly asserted goal of BDS is to pressure Israel to
change its policies toward, and treatment of, Palestinians in
the occupied territories. The author and supporters of this
bill see the BDS movement as a continuation of the Arab League
boycott, an effort to isolate and "demonize" Israel. This bill
would, therefore, prohibit a public entity from entering into a
contract if the company seeking the contract is participating in
a boycott against Israel. The bill would require the Department
of General Services (DGS) to develop a list of companies engaged
in a boycott against Israel. The bill sets forth procedures by
which a company could seek removal from the list, and it would
impose civil penalties on any company that falsely certified
that it was not engaged in a boycott of Israel. As noted in the
analysis, the bill in print raises serious and perhaps
insurmountable First Amendment concerns. Most notably, it
offers a clear illustration of the "unconstitutional conditions"
doctrine, which holds that a government may not condition a
government benefit on the recipient's willingness to forgo a
constitutional right, and its corollary, that government cannot
deny a benefit to penalize a person for exercising a
constitutional right. The Committee has recommended amendments
that may address the constitutional issues, but at the time of
this writing, the author had not informed the Committee as to
whether he would accept the suggested amendments. The bill is
supported by Jewish-American groups, including the Jewish Public
Affairs Committee of California and the Simon Wiesenthal Center,
as well as the California Teamsters Public Affairs Council. The
bill is opposed by dozens of groups representing a range of
civil rights, civil liberties, religious, peace, human rights,
and Palestinian groups. The bill recently passed out the
Assembly Committee on Accountability and Administrative Review
on a 5-1 vote, with three members abstaining.
SUMMARY: Prohibits a public entity from entering into a
contract if the contracting company is participating in a
boycott against Israel. Specifically, this bill:
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1)Provides that, notwithstanding any other law, a public entity
shall not enter into a contract on or after January 1, 2017,
to acquire or dispose of goods, services, information
technology, or for construction if the contracting party is
participating in a boycott against Israel.
2)Prohibits a company that is on a list of designated companies
engaging in a boycott of Israel from bidding on, submitting,
or entering into or renewing a contract with a public entity
to acquire or dispose of goods, services, information
technology, or construction for $10,000 or more.
3)Requires the Department of General Services (DGS) to create,
based upon a specified federal report, a list of companies
engaged in a boycott of Israel, and to update that list every
180 days. Requires DGS to provide a company with 90-days
prior notice of its intent to place the company on the list.
Provides the company with an opportunity to contest its
inclusion on the list.
4)Requires any company that submits a bid or proposal to enter
into or renew a contract for $10,000 or more with a public
entity to certify that it is not on the DGS list and is not
engaging in a boycott against Israel. If the public entity
determines, by credible information, that a company has
submitted a false certification, the company shall be subject
to a civil penalty of $250,000 dollars or twice the amount of
the value of the contract, whichever is greater. Permits a
city attorney, county counsel, or district attorney to bring a
civil action to recover the civil penalty and associated costs
and fees of recovery. A company that submits a false
certification would also be ineligible to bid on any contract
for three years. Requires DGS to submit the name of any
company that submits a false certification to the Office of
the Attorney General.
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5)Defines "boycott of Israel" to mean refusing to deal with,
terminating business activities with, or taking other actions
that are intended to penalize, inflict economic harm, or
otherwise limit commercial relations with Israel or persons or
entities incorporated with Israel or doing business in Israel
for reasons other than business, investment, or commercial
reasons. Specifies that "boycott" does not include any of the
following: a decision based on business or economic reasons;
termination or prohibition of commercial activity within a
particular jurisdiction that is required by federal or state
law.
6)Defines "company" to mean a sole proprietorship, organization,
association, corporation, partnership, joint venture, limited
partnership, limited liability partnership, limited liability
company, or other business association, including all wholly
owned subsidiaries, majority-owned subsidiaries, and parent
companies, that exist for the purpose of making profit.
EXISTING LAW:
1)Prohibits Congress and, through the Fourteenth Amendment, any
state from abridging freedom of speech or of the press.
(United States Constitution, Amendments I and XIV.)
2)Provides that every person may freely speak, write and publish
his or her sentiments on all subjects, being responsible for
the abuse of this right. Provides that no law may restrain or
abridge liberty of speech or press. (California Constitution,
Article I, Section 2(a).)
3)Holds that an economic boycott, even though it may cause
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economic disruption, is protected expression under the First
Amendment. (NAACP v. Claiborne Hardware Co. (1982) 458 U.S.
886.)
4)Holds, under the unconstitutional conditions doctrine, that
the government cannot condition a benefit on the requirement
that a person forgo a constitutional right, and, as a
necessary corollary, that the government may not deny a
benefit to a person because he or she exercises a
constitutional right. (Regan v. Taxation with Representation
of Washington (1983) 461 U.S. 540, 545, citing Perry v.
Sindermann (1958) 408 U.S. 593, 597; see also Speiser v.
Randall (1958) 357 U.S. 513, especially at 518-519; Federal
Communications Commission v. League of Women Voters (1984) 468
U.S. 364; Legal Services Corporation v. Velazquez (2001) 531
U.S. 533; and Rumsfeld v. Forum for Academic and Institutional
Rights (2006) 574 U.S. 47, 59.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author and sponsors, this bill is a
response to the Boycott, Divestment and Sanctions (BDS)
movement, an organized, international campaign calling upon
businesses, unions, churches, universities, and academic
associations, among others, to divest any funds or investments
in Israel, or any company that does business in Israel. It
calls for boycotts of Israeli goods and products, and seeks to
prohibit academic and exchanges between Israel and the United
States. The most commonly asserted purpose of these actions to
pressure Israel to change its policies toward, and treatment of,
Palestinians in the occupied territories. While the proponents
of this bill depict the BDS movement as an anti-Semitic,
internationally-led effort to demonize Israel, the opponents of
this bill - including many Jewish American groups who have
nothing to do with the BDS movement - contend that the purpose
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is to change Israel's policies. Both proponents and opponents
are understandably passionate about this bill, which pits one
group who is deeply and genuinely concerned about the fate of
Israel's existence, against another group that is just as deeply
and genuinely concerned about the fate of Palestinians in the
occupied territories. This analysis, however, deals with a
different issue: whether the provisions of this bill would
likely violate the First Amendment. Not surprisingly,
proponents of the bill seem quite certain that it does not
violate the First Amendment; while opponents are equally certain
that it does. This analysis presumes that matters of
constitutional law are rarely if ever certain. It concludes
that the bill in print raises very serious and possibly
insurmountable First Amendment concerns; however, it also
concludes that if the bill were amended to focus on
discriminatory "practices," as opposed to boycotts, it would be
more likely to withstand a First Amendment challenge.
What the Bill Does: As currently in print, this bill would
prohibit a public entity, on or after January 1, 2017, from
entering into a contract with a company if the company seeking
the contract is participating in a boycott against Israel. It
would, correspondingly, prohibit a company participating in a
boycott against Israel from bidding on a contract with any
public agency if the contract is valued at more than $10,000.
The bill would also require the Department of General Services
(DGS) to develop a list of companies that it determines are
engaged in a boycott against Israel. In order to develop this
list, DGS is directed to use a report that the President of
United States will be required to submit to Congress pursuant to
the recently signed HR 644, known as the Trade Facilitation and
Trade Enforcement Act of 2015. DGS would be required to update
its list every 180 days.
Once the relevant companies are identified and the list becomes
effective, DGS would provide each company with 90 days' written
notice of its intent to include the company on the list. The
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notified company would be afforded an opportunity to contact DGS
in writing if it believed that it had been wrongly placed on the
list. The bill does not specify what would happens if DGS were
not persuaded by the company's claim, or what remedies, if any,
the company would have after that point.
In addition, the bill requires any company that submits a bid
for a new contract, or for renewal of an existing contract, to
"certify" that it is not on the DGS list and is not engaged in a
boycott of Israel. If DGS or the contracting public entity
determined, based on "credible evidence," that the company was
engaged in a boycott of Israel after certifying that it was not,
the company would be liable for a civil penalty of $250,000 or
twice the value of the contract, whichever is greater.
The bill defines "boycott of Israel" in a customary way:
refusing to deal with, terminating business activities with, or
taking other actions that are intended to penalize, inflict
economic harm, or otherwise limit commercial relations with
Israel, or with persons or entities doing business in Israel,
for other than business, investment, or commercial reasons. The
bill specifies that "boycott" does not mean a decision for
business or economic reasons. While the definition is
customary, it nonetheless illustrates a problem when applied to
this context; it may be difficult to distinguish when a decision
is made to inflict harm on Israel from when a decision is made
for "business or economic reasons." That is especially
difficult considering that the very purpose of a boycott is to
exert economic pressure. What if a company decided to stop
doing business with Israel, not out of sympathy with the
boycott, but because it feared that, in light of the boycott,
continuing to do business with Israel would hurt its business?
Would that decision constitute impermissible "participation" in
the boycott, or would it be a decision for business and economic
reasons?
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Problems with the DGS "List" of Companies: Before addressing
the larger constitutional issues, it is necessary to consider a
practical problem with the bill in print. As noted, the bill
requires DGS to develop a list of companies engaged in a boycott
of Israel, based on a report required by "Section 909" of the
Trade Facilitation and Trade Enforcement Act of 2015. (In fact,
"Section 909" refers to the section of the bill, HR 644, that
enacts the Act; the Act itself will have a different section
number in the United States Codes, but that is an easily
addressed technical problem.) However, it is not clear how the
report required by Section 909 could possibly provide DGS with
any information to help it develop a list of private companies
engaged in a boycott against Israel. Section 909 does not
require that the report contain any information on private
companies engaged in a boycott of Israel. Rather, it requires
the report to include a "description" of barriers to trade with
Israel and a summary of what the President has done to remove
those barriers. The final part of the report requires
information on "decisions by foreign persons, including
corporate entities and state-affiliated financial institutions,
that limit or prohibit economic relations with Israel or persons
doing business in Israel or in any territory controlled by
Israel." It seems unlikely that DGS could develop a meaningful
list of "companies" engaged in a boycott of Israel when all that
the report calls for is a description of barriers to trade with
Israel; a summary of what the President has done to remove those
barriers; and information about "decisions by foreign persons"
that limit or prohibit economic relations with Israel. There is
no indication that the report will include any information about
companies, foreign or domestic, that are participating in a
boycott of Israel.
The Unconstitutional Conditions Doctrine: Proponents of the bill
have suggested that this bill does not violate the First
Amendment because it would not prohibit anyone from engaging in
a boycott; it would only provide that those who do so would
forgo the privilege, not the right, to seek a government
contract. This reasoning, however, ignores the well-established
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"unconstitutional conditions" doctrine. An underlying principle
of the doctrine is that the government cannot condition the
receipt of a government benefit upon the recipient's willingness
to forgo a constitutional right. The U.S. Supreme Court has
also recognized a necessary corollary: just as the government
may not condition a benefit on a willingness to forgo a
constitutional right, it may not deny a benefit to a person
because he or she has exercised a constitutional right. As a
number of constitutional scholars have noted, the
unconstitutional conditions doctrine is especially relevant when
the constitutional right is one of the "preferred rights" of the
First Amendment. The doctrine is also bolstered by the
principle that the government may not leverage a benefit to
prohibit indirectly what it cannot constitutionally prohibit in
a direct manner. Because a government cannot prohibit speech
directly (and the Supreme Court, as noted below, has held that a
peaceful boycott is protected speech), it cannot withhold a
government benefit to achieve that unconstitutional end
indirectly. (For a concise overview of the doctrine see Erwin
Chemerinsky Constitutional Law: Policies and Principles 3d. Ed.,
pp. 980-984; for a more extended treatment see Kathleen
Sullivan, "Unconstitutional Conditions," 102 Harvard Law Review
1413 (1989).)
The author submitted to the Committee a four-page article from
the magazine, Tablet, to provide the Committee with what was
described as a legal "analysis" purporting to show the
inapplicability of the unconstitutional conditions to this
issue. While the article is indeed written by a respected
constitutional law scholar, Eugene Kontorovich of Northwestern
University School of Law, it is not a scholarly analysis of the
issue. For example, the article begins by comparing the
legislative approach endorsed by this bill with federal and
state laws that require contractors to not discriminate "on the
basis of sexual orientation or gender identity," because there
is "no doubt that the First Amendment protects a potential
contractor's belief that homosexuality is wicked behavior." The
obvious problem with this comparison is that unlawful
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discrimination is not protected speech. Under those federal and
state laws, a contractor is not denied a contract because of his
or her constitutionally protected "belief" that homosexuality is
wicked; rather, the contractor is denied the contract because
discrimination in employment on those grounds is an illegal
"practice." There is a substantial difference between the
government refusing to contract with someone who engages in an
illegal practice, on the one hand, and the government refusing
to contract with someone who engages in a legal boycott, on the
other hand, because the U.S. recognizes a boycott as protected
speech. (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886.)
No court has ever held that unlawful discrimination is
protected speech.
Professor Kontorovich's Tablet article also compares legislation
of the sort proposed by this bill to a law or policy that
prohibits someone from wearing an "obscene T-shirt," even though
"wearing obscene T-shirts is a clear First Amendment right, more
obviously expressive than refusing to do business with Israeli
companies. Yet states can obviously rethink contracts to
companies whose executives habitually show up to meetings in
such shirts, because wearing obscene T-shirts is also bad
business." The problem with this comparison is that
"obscenity" is a classic example of "unprotected speech" under
First Amendment case law. Thus wearing an obscene T-shirt is
not "a clear First Amendment right." Professor Kontorovich next
discusses the U.S. Supreme Court's decision in Rumsfeld v. Forum
for Academic and Institutional Rights (2006) without noting that
the decision actually endorsed the unconstitutional conditions
doctrine, holding that the "government may not deny a benefit to
a person on a basis that infringes constitutionally protected .
. . freedom of speech even if he had not entitlement to that
benefit." (Rumsfeld, supra, 574 U.S. 47, at 59.) The Court
upheld a policy in that particular case not because it rejected
the unconstitutional conditions doctrine, but because it found
the specific prohibited activity was "conduct" not "speech."
Professor Kontorovich fails to acknowledge that the Court has
held that a boycott is speech. (Curiously, Professor
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Kontorovich claims that those who cite NAACP v. Claiborne for
the proposition that boycotts are protected speech are trying to
"confuse people," and that it "takes more than waving one's
hands in the direction of a Supreme Court case to make a legal
argument." But it also does not prove that a United State
Supreme Court case, widely and repeated cited as holding that a
boycott is speech, is not relevant by merely asserting so.
Professor Kantorovich claims that the case only held that the
picketing and speeches that accompanied the boycott were
protected. It is certainly true that the Court found the
picketing and speeches to be protected speech. But it is
equally true that the Court found that a boycott itself, unless
accompanied by violence or other unlawful activity, is also
protected speech.)
In sum, notwithstanding the claims of Professor Kontorovich, the
well-established unconstitutional conditions doctrine provides
that the government may not condition a benefit on the
recipient's willingness to forgo a constitutional right, nor can
it deny a government benefit to a person because that person has
exercised a constitutional right. While it is true that
"conduct," as opposed to "speech," is not protected by the First
Amendment, the U.S. Supreme Court has held that a boycott is a
form of protected speech. This bill, as currently in print,
would prohibit a public entity from contracting with a private
company that engages in a boycott of Israel. It would require a
company wishing to contract with the state to certify that is
not engaged in a boycott of Israel (a possible coerced speech
problem) and impose draconian and unprecedented penalties
($250,000 or twice the value of the contract) for any false
certification. It allows the company to submit a letter to DGS
challenging its placement on a list of companies boycotting
Israel, but it provides no legal remedy if DGS rejects this
challenge. It is difficult to imagine legislation more clearly
calculated to have a chilling impact of the exercise of
protected speech.
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Federal and State Laws Restricting Boycotts Do Not Justify the
Approach Taken in this Bill. In addition to dismissing the
unconstitutional conditions doctrine, proponents of this bill
also claim that the approach adopted by this bill squares with
prior California legislation and current federal legislation.
It is true that federal and state laws were passed, beginning in
the 1970s, in response to the Arab League boycott. However,
while one could question the constitutionality of those laws as
well, it should be noted that those laws are different from this
bill in very substantial ways.
Since 1977, federal law has imposed various restrictions on
foreign entities that boycott Israel, as well as restrictions on
private entities that participate in boycotts against Israel
fostered by foreign states. For example, the federal Foreign
Relations Authorization Act of 1994, like AB 2844, prohibits
government contracts with persons or entities boycotting of
Israel. However, the differences between that Act and this bill
are substantial and revealing. The Act prohibited the
Department of State from entering into any contract with either
of the following:
(A) with a foreign person that complies with the Arab
League boycott of Israel, or
(B) with a foreign or United States person that
discriminates in the award of subcontracts on the basis of
religion. (22 USC Section 2679c (1)(A)-(B); emphasis
added.)
In other words, the Department of State may not enter into
contracts with a "foreign person" that participates in the Arab
League boycott of Israel; but, significantly, when it comes to a
"United States person" (defined elsewhere in the statute as a
United States resident or citizen) the prohibition only applies
if that person "discriminates . . . on the basis of religion."
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In other words, when it comes to a citizen or resident of the
United States, as opposed to a "foreign person," the contract
cannot be denied simply because the person participated in the
Arab League boycott of Israel. That person must have done
something more; that person must have also "discriminated" -
engaged in conduct, not speech - "on the basis of religion."
Clearly, Congress understood that American citizens could not be
denied a government contract simply for engaging in a boycott of
Israel, even one unquestionably led by for a foreign entity and
disfavored by the American government. A U.S. resident or
citizen, protected by the First Amendment, could only be denied
a contract if he or she engaged in a discriminatory practice
"based on religion." Clearly, Congress understood that a
boycott is speech that is protected by the First Amendment,
while discriminatory practices are conduct and therefore
unprotected.
This federal law is remarkably consistent with California's
existing Arab League boycott law, enacted in 1992, two years
before the federal law cited above. Codified as Government Code
Section 16649.80 et seq., the California law prohibits the State
of California from investing funds in financial institutions
engaged in the Arab League boycott of Israel. The author and
supporters of AB 2844 cite this existing law as supporting the
constitutionality of the bill under consideration. However, the
California statute is substantially different than AB 2844.
Specifically, the 1992 legislation does not apply to companies
that engage in a boycott, but rather to companies "engaging in
discriminatory business practices" in furtherance of a boycott
of Israel. (Government Code Section 16649.82.) The existing
law then defines "discriminatory business practices" to mean any
activity prohibited by Business & Professions Code Section 16721
and 16721.5. These sections, in turn, prohibit business
discrimination "on the basis of any characteristic listed" in
the Unruh Civil Rights Act. Clearly the existing law is much
more limited than AB 2844, because it does not condition the
benefit on forgoing the exercise of free speech but instead
denies the benefit based upon the company's engagement in
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discriminatory "practices" that are already prohibited by law.
It is one thing to say that the state will not contract with, or
invest in, any company that violates anti-discrimination laws or
engages in discriminatory behavior based on the protected
characteristics in the Unruh Act; it is quite another to say
that the state will not contract with a company that
participates in a lawful boycott.
Proposed Committee Amendments: As currently in print, AB 2844
does not appear to the Committee able to pass constitutional
muster, and even if it could, the mechanism for identifying
relevant companies is simply not up to the task. The Committee
therefore strongly recommends that the author amend the bill to
model the 1992 statute on the Arab League boycott of Israel
(Government Code Section 16649.80 et seq.) As proponents of
this bill have repeatedly told the Committee, this statute has
never been challenged on constitutional grounds. This appears
to be true, but that also means that the statute has never been
upheld as constitutional. It may be that the statute was never
challenged because apparently it was rarely if ever used. At
any rate, the existing state law, like the federal statute noted
above, raises less compelling constitutional concerns because it
focuses on "discriminatory business practices" linked to
existing prohibitions in the Unruh Act, instead of focusing on
boycotts which, unless coupled with other kinds of unlawful
conduct, are protected speech under the First Amendment. In
addition, the Committee's proposed amendments would remove any
reference to a DGS list and the federal report that, even when
it comes into existence, will not keep track of companies
engaged in boycotts against Israel. In addition, the
Committee's proposed amendments would not single out Israel, but
would rather apply to discriminatory business practices against
any sovereign nation or peoples, including, but not limited to,
Israel. Broadening the statute in this way may address some of
the problematic, one-sided "viewpoint discrimination" in the
current version of the bill.
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The Committee proposes the following amendments:
- Throughout the bill replace "boycott against Israel"
with "discriminatory business practices in furtherance of a
boycott of a sovereign nation or peoples recognized by the
government of the United States, including, but not limited
to, the State of Israel."
- Add a definition of "discriminatory business practices"
that is identical to the existing Arab League boycott
statute (GC 16649.80 et seq.), which requires
discrimination based on a characteristic listed in the
Unruh Act.
- Delete subdivision (c) which requires the DGS to consult
the President's report from HR 644 in order to create a
"list."
- Insert a new subdivision (c) that requires the Attorney
General to develop, keep, and maintain a list of companies
that engage in discriminatory business practices in
furtherance of a boycott of a sovereign nation or peoples.
- Make conforming changes in the subsequent subdivisions
so as to account for the removal of the DGS list
requirement. Where appropriate in the subsequent
subdivisions replace DGS with "Attorney General."
- While keeping the provisions that allow the company to
challenge its inclusion on the list, delete the sections
that require a company to certify that it is not engaged in
a discriminatory business practice and penalize the company
if it makes a false certification. It seems unduly harsh
to require a company to certify or prove what it is not
under the threat of such a severe penalty.
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ARGUMENTS IN SUPPORT: According to the author:
Since 2004, organized campaigns around the world have
promoted a policy of Boycott, Divestment and Sanctions
(BDS) against Israel. Campaigns have been launched
demanding the "divestment" of university, municipal,
church, union and other investment portfolios from
companies that do business with Israel, as well as the
banning of Israeli products, professionals, academics,
academic institutions and artistic performances (in Israel
and abroad).
The arbitrary nature of these boycotts and divestments has
caused concern about financial uncertainty within
investment portfolios and has caused corporations to stray
from their fiduciary responsibilities.
In July 2015, the Legislature affirmed its support for the
MOU by passing SCR 25, noting that participants in the MOU
had already expanded cooperation between Israel and
California in areas such as alternative energy,
agriculture, business innovation, and academia, and
declaring that collaboration with Israel will foster peace
and democracy in the Middle East.
Companies adhering to boycotts of Israel undermine the
aforesaid policy and purpose of encouraging trade,
business, and academic cooperation between California and
Israel. Therefore, it is in the best interest of the State
of California that it not contract with any company
participating in a boycott of Israel.
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The Jewish Public Affairs Committee of California (JPACC)
writes that this bill "reaffirms a commitment to increased
cooperation, trade, and mutually beneficial partnerships
between California and Israel on key issues such as water and
energy. Similar to the author's statement above, JPACC
stresses that the BDS movement seeks to damage this important
relationship but adds that, in addition to this, the BDS
movement seeks to "demonize and isolate Israel on our
campuses, in our communities, and on the world stage." JPACC
claims that "BDS does not further efforts to negotiate a
lasting peace for the people of Israel and the Palestinians,
but rather seeks to isolate one party rather than build trust
and goodwill between both. With recent BDS efforts intent on
harming public opinion and delegitimizing Israel," JPACC
concludes, "there is no more crucial time to pass this
legislation."
ARGUMENTS IN OPPOSITION: Representatives of the Berkeley and
Sacramento chapters of Jewish Voice for Peace (JVP) argue that
"in the guise of expressing concern for purported discriminatory
practices affecting Israel, the true agenda for these bills [AB
2844 as well as AB 1551 and AB 1552] is to shield Israel from
growing criticism of its policies and from nonviolent measures
taken to express and make meaningful that criticism." In
addressing the constitutionality of this measure, JVP cites
several court cases holding that "boycotts are protected speech
and therefore must be accorded the highest level of First
Amendment protection." JVP cites two U.S Supreme Court
decisions holding that government contractors cannot be punished
for political beliefs. JVP quotes the following language from
the 1996 case, O'Hare Truck Service Inc. v. City of Northlake:
"[government] may not deny a benefit to a person on a basis that
infringes his constitutionally protect interest - especially,
his interest in freedom of speech. For if the government could
deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited . . . Such
interference with constitutional rights is impermissible."
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Finally JVP argues that the bill's mechanisms for identifying
the blacklisted companies and implementing the measure are
"impossibly vague, and enforcement would therefore be capricious
and arbitrary." JVP concludes that AB 2844 is "deeply flawed"
and "an utterly unconstitutional undertaking."
The American Civil Liberties Union of California opposes AB 2844
because it would penalize constitutionally-protected political
speech. ACLU argues that that "however sympathetic one might be
to the cause the government seeks to support, the constitutional
rights to free speech cannot depend on whether the content of
the speech is admired or abhorred. Nor can any governmental
right to speak in aid of its interests outweigh the individual
right of its people to disagree. If governmental speech rights
trumped individual speech rights, the First Amendment would have
no meaning." ACLU also disputes the claims of the author and
supporters that this bill is about promoting trade and
cooperation between Israel and California, pointing to
statements in the bill's fact sheet and supporter statements
made elsewhere suggesting that the bill is motivated by
opposition to the political beliefs and motives of the BDS
movement and its critical stance on Israel. From the ACLU's
point of view, therefore, this bill is clearly a content-based,
if not viewpoint-based, infringement on free speech rights.
ACLU concludes: "Just as the government may not exercise its
sovereign power against its people in retaliation for their
political speech, it cannot deprive them of valuable financial
benefits to chill their speech on matters of public concern
without a compelling governmental interest - and unquestionably
not because it prefers another view. To uphold the right to
engage in a boycott is not necessarily to support its aims or
objectives - just as to uphold freedom of speech is not to
endorse the ideas expressed."
RELATED LEGISLATION: AB 1552 (Allen), currently awaiting
referral in Assembly Rules Committee, would generally prohibit a
public entity from entering into a contract to acquire or
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Page 19
dispose of goods, services, information technology, or
construction unless the contract includes a representation that
the contractor is not currently engaged in, and an agreement
that the contractor will not during the duration of the contract
engage in, the boycott, as defined, of a person or an entity
based in or doing business with a jurisdiction with which the
state can enjoy open trade, defined as a state that is a member
of the World Trade Organization.
AB 1551 (Allen), also awaiting referral in Assembly Rules
Committee, would prohibit the investment of certain state funds
in business firms or financial institutions that engage in
discriminatory business practices in furtherance or in
compliance with the boycott of Israel, as defined. The bill
would require state trust funds to use the most recent federal
report on politically motivated acts of boycott, divestment
from, and sanctions against Israel to determine which business
firms and financial institutions engage in those practices.
REGISTERED SUPPORT / OPPOSITION:
Support
30 Years After
Agudath Israel of California
Alpha Epsilon Pi Fraternity, Inc.
Alpha Epsilon Pi, California Polytechnic State University, San
AB 2844
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Luis Obispo
Alpha Epsilon Pi, Chapman University
Alpha Epsilon Pi, Claremont Colleges
Alpha Epsilon Pi, CSU, Chico
Alpha Epsilon Pi, CSU, Fullerton
Alpha Epsilon Pi, CSU, Northridge
Alpha Epsilon Pi, CSU, San Jose
Alpha Epsilon Pi, UC Berkeley
Alpha Epsilon Pi, UC Davis
Alpha Epsilon Pi, UC Irvine
Alpha Epsilon Pi, UCLA
Alpha Epsilon Pi, UC Riverside
Alpha Epsilon Pi, UC Santa Cruz
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Alpha Epsilon Pi, UC Santa Barbara
Alpha Epsilon Pi, UC San Diego
Alpha Epsilon Pi, San Diego State University
Alpha Epsilon Pi, San Francisco State University
American Jewish Committee
California Teamsters Public Affairs Council
Chabad of San Diego State University
Democrats for Israel Los Angeles
Israeli-American Council
Israeli-American Nexus
Jewish Public Affairs Committee of California
Simon Wiesenthal Center
StandWithUs
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Opposition
American Muslims for Palestine, various chapters
American-Arab Anti-Discrimination Committee
American Friends Service Committee
American Muslims for Palestine
Arab American Civic Council
Arab American Cultural Center of Silicon Valley
Arab Resource and Organizing Center, SF Bay Area
Bay Area Women in Black
BDS-LA for Justice in Palestine
Bill of Rights Defense Committee
Center for Constitutional Rights
Council on American Islamic Relations, California
California Democratic Party, Arab American Caucus
Chico Palestine Action Group
Coalition of Palestinian American Organizations
Cognitive Liberty
Culture and Conflict Forum
Defending Dissent Foundation
Davis Committee for Palestinian Rights
East Timor Action Network
Episcopal Peace Fellowship, Palestine Israel Network
Friends Committee on Legislation, California
Friends of Sabeel North America
Free Palestine Movement
If Americans Knew
International Jewish Anti-Zionist Network (IJAN)
International Solidarity Movement, Northern California
Islah Reparations Project
Islamic Shura Council of Southern California
Israel/Palestine Task Force of the California Nevada Conference
of United Methodists
Jewish Voice for Peace, various chapters
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Justice for Palestinians, San Jose
Kairos USA
Keep Hope Alive -- Bay Area Presbyterians
LA Jews for Peace
Middle East Peace Task Force, Southwest California Synod,
Evangelical Lutheran Church
National Lawyers Guild, various chapters
North Coast Coalition for Palestine
Northern California Islamic Council
Our Developing World
Palestine American Congress
Palestine American League
Palestine Israel Action Committee
Palestine-Israel Working Group of Nevada County
Palestine Legal
Palestine Political Action Committee
Palestinian American Women's Association
Palestinian Youth Movement-USA
Peace Action of San Mateo Co.
Peninsula Peace and Justice Center
People for Palestinian-Israeli Justice
Petaluma Progressives
Pilgrims of Ibillin
Queers Undermining Israeli Terrorism
Ramallah Club of San Jose
Rebuilding Alliance
Resource Center for Non-Violence, Santa Cruz
Sacramento Regional Coalition for Palestinian Rights
San Jose Peace and Justice Center
Social Justice Center of Marin
Students for Justice in Palestine, various chapters
Sustainable Agriculture Water and Health (SAWAH)
Syria Solidarity Movement
UAW 2865 Joint Council/Executive Board
Unitarian Universalists for Justice in the Middle East
United Church of Christ Palestine Israel Network
United Methodist Kairos Response
U.S. Campaign to End the Israeli Occupation
U.S. Palestinian Community Network
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Veterans for Peace, Chapter 87, Sacramento
Voices for Justice in Palestine, Rossmoor, Walnut Creek
Washington Interfaith Alliance for Middle East Peace
Wellstone Progressive Democrats of Sacramento
Women's International League for Peace & Freedom, various
chapters
14 Friends of Palestine, Marin County
Several individual letters and e-mails
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334