Written Certification
Anti-boycott legislation that prohibits government contracts often requires a written certification from the individual or entity submitting the bid, pledging that they are not boycotting Israel and that they will not do so for the duration of the contract. Some certification provisions specifically reference boycotts of Israel, frequently including territories controlled by Israel to reach boycotts of goods from illegal Israeli settlements; others use broader language, referring to boycotts of allied nations or jurisdictions with which the state enjoys open trade. As of November 2020, 24 states have anti-boycott laws with written certification requirements.
While all anti-boycott laws raise First Amendment concerns because they single out individuals and entities for second-class treatment because of their political views, written certifications draw particular attention because they compel speech, requiring would-be government contractors to take a position in favor of Israel. They also harken back to McCarthy era anti-communist loyalty oaths, which were widely challenged on First Amendment grounds.
In several states, individuals who support BDS, and in one case, a newspaper company that was unwilling to be forced into taking a position on Israel/Palestine, have filed lawsuits after being denied or unable to enter into contracts with the state because of the written certification requirement. In Kansas, Arizona, and Texas, federal courts blocked enforcement of state anti-boycott laws on First Amendment grounds. Rather than repealing the law, all three states amended their laws to create monetary thresholds or to limit the application of the law to companies with a particular number of employees such that the laws no longer applied to the plaintiffs in the cases, rendering them moot.
Blacklists
Anti-boycott legislation frequently requires state agencies or boards to create a public list of activists, nonprofits, and/or companies that support for boycotts for Palestinian rights and prohibit states from contracting with or investing in listed entities. As of November 2020, 13 states have anti-boycott laws that require the creation of a blacklist of entities that support or engage in boycotts for Palestinian rights or BDS.
These blacklists have faced delays because of imprecise standards in the law and criticism because of the inaccuracies in the lists. When Illinois published a blacklist of 11 companies pursuant to the country’s first anti-boycott law, a number of the companies on the list reported being surprised by their inclusion and that they did not boycott Israel or its illegal settlements.
Resolutions
Resolutions are generally non-binding measures passed by one or both chambers of a state or federal legislature or by a municipal body. Resolutions express the view of legislators, and sometimes encourage other bodies to take particular actions. Resolutions generally do not create enforceable law, but certain types of resolutions, such as joint resolutions, can have a legal effect.
In line with our methodology, we include resolutions that–either in their text or through statements by their sponsors–evidence an intent to condemn, restrict, or punish the movement for Palestinian freedom and equality. These resolutions include condemnations of boycotts or BDS, false claims that attempt to brand activists as wrongdoers or antisemitic, and/or efforts calling on decision makers to infringe on activists’ constitutionally protected political expression–often all of the above. As such, we do not classify resolutions by type, nor are they counted in the statistics or the map. Taken as expressions of the views of US lawmakers, these resolutions contribute to a chilling effect on advocacy for Palestinian rights.
Executive Orders
An executive order is a directive issued by the President (or the Governor in a state executive order), which manages the operations of other government agencies. The order may call for other government agencies or departments to evaluate, survey, withhold, or perform some function within their duties. Unlike a legislative bill, an executive order does not require approval from other branches of the government.
In several states, governors have adopted executive orders when efforts to pass anti-boycott bills have stalled or failed in the state legislature. In New York, two different anti-boycott bills had been introduced in each house of the legislature during the 2015-2016 session and had prompted more than one hundred activists and civil liberties groups to speak out against them, flagging constitutional concerns. Gov. Andrew Cuomo unilaterally signed an executive order in 2016 creating a blacklist of and requiring the state to divest from companies that engage in or encourage others to engage in BDS.
Similarly, in Maryland, after activists defeated an anti-boycott bill introduced in the 2017 legislative session, Gov. Larry Hogan unilaterally adopted an anti-boycott executive order.
As of July 2020, governors in six states have adopted executive orders targeting advocacy for Palestinian rights–Kentucky, Louisiana, Maryland, New York, South Dakota, and Wisconsin [add links to state pages]. In December 2019, President Trump signed an antisemitism redefinition executive order after several failed attempts to pass similar legislation through Congress.