It often appears that Sacramento lawmakers who swarm to pass bills infringing free speech and press rights do so with a tin ear to the First Amendment because they trust that the courts can and will iron out any such deficiencies—and meanwhile they don’t want to frustrate what they see as popular demand, particularly from generous sources of campaign contributions.
Such seems to be the case with AB 2844, at this writing just one vote (and a sure thing at that) away from the Governor’s desk. The bill provides that
A person that . . . proposes to enter into or renew a contract with a state agency . . . in the amount of one hundred thousand dollars ($100,000) or more shall certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed, all of the following:
(a) That they are in compliance with the Unruh Civil Rights Act.
(b) That they are in compliance with the California Fair Employment and Housing Act.
(c) That any policy that they have against any sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel, is not used to discriminate in violation of the Unruh Civil Rights Act or the California Fair Employment and Housing Act.
In other words, at the time of a contract award or renewal valued at $100,000 or more, a person seeking the state’s business must swear that any politically motivated boycott against the State of Israel (among others) that they’re a party to does not violate California laws barring discrimination against people seeking housing, employment or other economic relationships.
The bill thus admittedly seeks to deny substantial state business to participants in the BDS (Boycotts, Sanctions and Divestment) Movement – described here as
a global campaign attempting to increase economic and political pressure on Israel to comply with the stated goals of the movement: the end of Israel’s occupation and colonization of Palestinian land and the Golan Heights, full equality for Arab-Palestinian citizens of Israel, and respect for the right of return of Palestinian refugees.
But AB 2844 in its final form may well be of illusory relief to its supporters, since it seems highly unlikely that a court would find the BDS tactics violative of either the Fair Employment and Housing Act or the Unruh Act, leaving prospective contractors free to attest accordingly. Those statutes forbid discrimination against persons in a protected class—race, religion, national origin, ethnicity, sex, sexual identity, etc.—which so far does not include sovereign nations or foreign businesses.
Moreover, even if the Legislature moved to correct this shortcoming by adding foreign organizations to the protected category—a radical transformation of both the Fair Employment and Housing and Unruh Acts— a politically motivated, nonviolent business boycott has been held for a third of a century to be speech activity protected by the First Amendment, and could not be deemed a lawful basis for governmental punishment.
