Friday, April 26, 2019

Texas Anti-BDS Law Struck Down

This is an extremely methodical and well-reasoned opinion that I suspect will become the touchstone for future courts examining this issue. And not to pat myself on the back too hard, but it pretty much represents a line-by-line validation of my essay laying out the faults in anti-BDS laws and how they might be avoided.
1) The court makes much of the fact that the law applies to sole proprietorships who have no independent existence from their "owner", meaning that the anti-boycott provisions seemingly apply to their personal, individual choices. I suggested that anti-BDS laws should probably exempt sole proprietorships for this reason (Texas is already gearing up to amend the law along these lines, which is likely to moot the proceedings since I don't think any of the plaintiffs are large enough or do enough business with the state to qualify under the new law); 
2) The court notes that the law does not clearly limit itself to forbidding boycott activity that occurs in the course of fulfilling the contractor's work with the state; I suggested that implementing such a limitation would more clearly link the law to the state's interest in managing its contractors' work performance. 
3) While Texas tried to defend its law as a protection against national origin discrimination, the court observed that the law as written is both massively under- and over-inclusive along that score. I suggested that, if a state wants to write a national origin discrimination ban, just do that instead of trying to gerrymander an Israel-only one-off.
So yes, the moral of the story continues to be that these laws are massive own-goals by the pro-Israel movement and they're reaping what they've sown by allowing sloppy, politically-motivated legislation to become the face of the anti-BDS cause and then blow up in their faces. The other moral of the story is to listen my legal analysis.

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