LB 343 Stifles Free Speech
by Sharon Conlon and Brittany Cooper
Published in the Lincoln Journal Star’s Local View May 10, 2023
“Apartheid was legal. The Holocaust was legal. Slavery was legal. Colonialism was legal. Legality is a matter of Power, not Justice.” -Anonymous knows, Power produces law. Laws can produce Justice on occasion, and weaker parties can sometimes prevail, but moments of Justice are relatively rare and fleeting. Over time Power persistently prevails, and if it doesn’t, it changes the terms of the game.
One moment of Justice was the 1982 Supreme Court decision in NAACP v. Claiborne Hardware. That decision held a constitutional right under the First Amendment to engage in peaceful boycotts to bring about political, social, and economic change, “occupying the highest rung of the hierarchy of First Amendment values.”
In other words, it is not for the State to determine which political viewpoints are acceptable or whose beliefs and motivations are politically correct. Government can not coerce into silence those whose politics differ from state officials.
Dismantling the right to boycott started in 2016 with the corporate-funded American Legislative Exchange Council (ALEC), which drafts “model” bills for conservative legislators to introduce in state houses across the US. Thirty-five states have swallowed their pill and passed this template: to get a state contract, you must have a written pledge that you will not boycott Israel during the contract. Nebraska is now on that chopping block with LB 343. If this bill is passed into law, to contract with the State of Nebraska, you must choose between your right to political speech or your livelihood. Even when this method LB 343 Stifles Free Speech of protest is irrelevant to the nature and performance of the contract.
Initially the pledge included individuals, who all won in court. So, ALEC upped the ante, and the template now says 10 employees or a $100,000 contract. “Nothing to see here, move along folks.”
The Arkansas Times newspaper advertises for the State’s universities. They refused to sign, not because they had a position on boycotts of Israel or had ever written about the topic. They simply didn’t want to take a legislature’s required loyalty oath on anything it chose as a condition of doing business with the State. The Times won in the lower courts. Arkansas brought it to the full conservative Eighth Circuit Court of Appeals, which ruled the State can compel purely commercial conduct. This contradicts the First Amendment protecting politically motivated economic boycotts.
Judge Donald Kobes of the Eight Circuit Court, who wrote the opinion, was rated unqualified by the American Bar Association when nominated. Kobes apparently thinks the Boston Tea Party was not speech but an economic activity. This court of 7 states, including Nebraska, is the only Appeals Court of 13 courts ruling this way. The Supreme Court has refused to hear the case, not because they have a position on boycotting but because they didn’t have a majority who want to take it up.
Now states are passing a raft of antiboycott-laws barring contracts with any company or institution engaged in boycotts related to fossil fuel-based energy, timber, mining, and agriculture industries, arms manufacturers, greenhouse gas emissions, governance, abortion, transgender care, immigration policies, and barring business with companies that do boycott these categories.
LB 343 is a ridiculous government overreach; conditioning government benefits only if it aligns with the political ideology of legislators. They are coercing their interests and forcing contractors to take their political side. To uphold freedom of speech is not to endorse the ideas expressed; it is to promote and protect the cacophony of ideas.
Israel is a state, not a person. Everyone has the right to criticize the unjust actions of a state. Even Israel’s own leading human rights organizations B’Tselem and Yesh Din have documented that Israel is practicing apartheid. The world’s leading human rights organizations, such as Human Rights Watch and Amnesty International, have reported the same. One example: presently, Israel has demolition orders for 58 Palestinian schools, and punitive house demolitions are always ongoing.
Politicians are waving the flag of freedom while passing everything they can to infringe on free speech. We have the right to withhold our purchasing power to effect legal and social change, whether we choose to boycott for the simple principle that Palestinians are entitled to equality, not apartheid or boycott because industries are harming minorities, the environment, and other species.
The 1982 Supreme Court decision was a rare moment of Justice when Law produces Power. Please help us preserve it. Oppose LB 343.
Published in the Lincoln Journal Star’s Local View May 10, 2023
“Apartheid was legal. The Holocaust was legal. Slavery was legal. Colonialism was legal. Legality is a matter of Power, not Justice.” -Anonymous knows, Power produces law. Laws can produce Justice on occasion, and weaker parties can sometimes prevail, but moments of Justice are relatively rare and fleeting. Over time Power persistently prevails, and if it doesn’t, it changes the terms of the game.
One moment of Justice was the 1982 Supreme Court decision in NAACP v. Claiborne Hardware. That decision held a constitutional right under the First Amendment to engage in peaceful boycotts to bring about political, social, and economic change, “occupying the highest rung of the hierarchy of First Amendment values.”
In other words, it is not for the State to determine which political viewpoints are acceptable or whose beliefs and motivations are politically correct. Government can not coerce into silence those whose politics differ from state officials.
Dismantling the right to boycott started in 2016 with the corporate-funded American Legislative Exchange Council (ALEC), which drafts “model” bills for conservative legislators to introduce in state houses across the US. Thirty-five states have swallowed their pill and passed this template: to get a state contract, you must have a written pledge that you will not boycott Israel during the contract. Nebraska is now on that chopping block with LB 343. If this bill is passed into law, to contract with the State of Nebraska, you must choose between your right to political speech or your livelihood. Even when this method LB 343 Stifles Free Speech of protest is irrelevant to the nature and performance of the contract.
Initially the pledge included individuals, who all won in court. So, ALEC upped the ante, and the template now says 10 employees or a $100,000 contract. “Nothing to see here, move along folks.”
The Arkansas Times newspaper advertises for the State’s universities. They refused to sign, not because they had a position on boycotts of Israel or had ever written about the topic. They simply didn’t want to take a legislature’s required loyalty oath on anything it chose as a condition of doing business with the State. The Times won in the lower courts. Arkansas brought it to the full conservative Eighth Circuit Court of Appeals, which ruled the State can compel purely commercial conduct. This contradicts the First Amendment protecting politically motivated economic boycotts.
Judge Donald Kobes of the Eight Circuit Court, who wrote the opinion, was rated unqualified by the American Bar Association when nominated. Kobes apparently thinks the Boston Tea Party was not speech but an economic activity. This court of 7 states, including Nebraska, is the only Appeals Court of 13 courts ruling this way. The Supreme Court has refused to hear the case, not because they have a position on boycotting but because they didn’t have a majority who want to take it up.
Now states are passing a raft of antiboycott-laws barring contracts with any company or institution engaged in boycotts related to fossil fuel-based energy, timber, mining, and agriculture industries, arms manufacturers, greenhouse gas emissions, governance, abortion, transgender care, immigration policies, and barring business with companies that do boycott these categories.
LB 343 is a ridiculous government overreach; conditioning government benefits only if it aligns with the political ideology of legislators. They are coercing their interests and forcing contractors to take their political side. To uphold freedom of speech is not to endorse the ideas expressed; it is to promote and protect the cacophony of ideas.
Israel is a state, not a person. Everyone has the right to criticize the unjust actions of a state. Even Israel’s own leading human rights organizations B’Tselem and Yesh Din have documented that Israel is practicing apartheid. The world’s leading human rights organizations, such as Human Rights Watch and Amnesty International, have reported the same. One example: presently, Israel has demolition orders for 58 Palestinian schools, and punitive house demolitions are always ongoing.
Politicians are waving the flag of freedom while passing everything they can to infringe on free speech. We have the right to withhold our purchasing power to effect legal and social change, whether we choose to boycott for the simple principle that Palestinians are entitled to equality, not apartheid or boycott because industries are harming minorities, the environment, and other species.
The 1982 Supreme Court decision was a rare moment of Justice when Law produces Power. Please help us preserve it. Oppose LB 343.
