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Everyone is Misreporting the Texas BDS Lawsuit

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Speech pathologist Bahia Amawi, who works as a contractor for the Pflugerville Independent School District in Texas, has filed a lawsuit claiming that an anti-boycott-of-Israel pledge she was asked to sign violates her First Amendment right to freedom of speech. This was reported first by Glenn Greenwald at the Intercept, who set the tone for the media coverage by claiming, in his typical exaggerated and dishonest fashion, that the lawsuit arose after Amawi "refused to sign an oath vowing that she 'does not' and 'will not' engage in a boycott of Israel or 'otherwise tak[e] any action that is intended to inflict economic harm' on that foreign nation." (Greenwald's headline is even more misleading, claiming that Ms. Amawi was required to sign a "pro-Israel oath.")

There are a lot of things I could say about the law and the lawsuit, but I have some time constraints, so I will just explain why Greenwald's take, repeated ingenuously by reporters apparently too lazy to look up the actual text of the underlying law and what Ms. Amawi was asked to sign, is wrong.

Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just like local governments require contractors to certify that they adhere to many other state laws, such as anti-discrimination laws and financial propriety laws, they also must certify, in compliance with state law, that their business does not boycott Israel.

Here is the specific language Ms. Amawi was asked to sign (see appendix A):

Pursuant to Section 2270.001 of Texas Government Code, the Contractor affirms that it: 1. Does not currently boycott Israel; and 2. Will not boycott Israel during the term of the contract Pursuant to Section 2270.001 of Texas Government Code:

  1. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic 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, but does not include an action made for ordinary business purposes;and
  2. "Company" means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.

Note that, consistent with the language and obvious intent of the law (see the text here, it's even titled "PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL"), the school district certification applies to the business, "it," not the individual "she." Contrary to what I've been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel.

Briefly on the First Amendment issue, it's no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group. The sole proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can't engage in action that the state disapproves of. Supreme Court precedent, mostly to my chagrin, seems rather clear that this is constitutional, and that the protected class in question need not be an individual or minority group--in FAIR v. Rumsfeld, the Court held that the law school plaintiffs had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters.

In short, this story is being widely misreported, the hysterical claims that Amawi is being forced to sign a pro-Israel pledge or personally do or not do anything in particular regarding Israel outside the context of her business are false, and the First Amendment lawsuit will almost certainly lose. Moreover, it's nearly impossible to think of a way in which Ms. Amawi's speech pathology business would ever have an opportunity to in any way boycott or otherwise economically harm Israel, rendering this pure political theater.

*Other localities make this even clearer. The City of Waco's standard contract, for example, states: "CERTIFICATION REQUIRED BY TEXAS GOVERNMENT CODE SECTION 2270.001 By signing below, Company hereby certifies the following: 1. Company does not boycott Israel; and 2. Company will not boycott Israel during the term of the contract."

UPDATE: Just as I was posting this, a friend of mine posted on Facebook that "individual school teachers are being required to attest that they will not personally boycott Israel as private citizens, even when they are not at work." I can easily see how he thought that given the media's coverage of the lawsuit, and it's yet another example of why one should never, ever trust the media take on a controversy without confirming the original sources. I do it myself sometimes, and generally regret it.

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francisga
9 hours ago
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Lafayette, LA, USA
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Germany and Brazil: litigation without depositions

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One thing that I have learned from being an expert witness in the U.S. court system is that there are seldom any surprises at trial. Everyone who will testify has already been deposed for 7 hours (Federal rules).

I have recently done some work on a U.S. case in which a bunch of folks in Brazil were involved. I asked the lawyers “Are you going down to Brazil to take depositions?” They responded with “We would be arrested. It is illegal to take a deposition in Brazil.” The legal system down there runs on documents, apparently. If human witnesses are going to add anything, they testify at trial and lawyers have to think on their feet for cross-examination.

It turns out that Germany is organized along similar lines (1985 article that explains the system there), though I don’t think they go so far as to imprison folks who agree to hang out and depose one another, e.g., for a U.S. case.

If we want to see Perry Mason-style drama, maybe we need to visit a courtroom in Brazil!

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francisga
2 days ago
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Lafayette, LA, USA
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Saturday Morning Breakfast Cereal - Suffering

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Click here to go see the bonus panel!

Hovertext:
If there were robot philosophers, the fundamental nature of consciousness would be multiplying large matrices.


Today's News:
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francisga
2 days ago
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Lafayette, LA, USA
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Saturday Morning Breakfast Cereal - Proof

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Click here to go see the bonus panel!

Hovertext:
(Sorry)


Today's News:
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francisga
3 days ago
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Lafayette, LA, USA
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1 public comment
rclatterbuck
1 day ago
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I knew there was a joke in there somewhere!

Saturday Morning Breakfast Cereal - Permit

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Click here to go see the bonus panel!

Hovertext:
Later, the system breaks down when people feel a strange urge to max out their quarterly allowance.


Today's News:
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francisga
4 days ago
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Lafayette, LA, USA
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1 public comment
Lythimus
4 days ago
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Is the max-out negative allowances economic thing actually seen in practice? I don't randomly pirate things just because my ISP has 3 strikes policy.
samldanach
1 day ago
In some cases, it is. I'm not familiar enough with the details to discuss it intelligently, though. But one example is that Canada's health care system is suffering because they put a cap on monthly charges, and people are choosing a lot of elective and unnecessary diagnostic treatments to "get their share" of the money.

Lafayette is now the site of a scooter skirmish

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First, Bird flew in 100 scooters overnight. Now, Lime has rolled 25 of its custom-made scooters into town this week, making Lafayette the latest skirmish in 2018’s dockless scooter war.

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francisga
5 days ago
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Lafayette, LA, USA
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