496 F.Supp.3d 917
D. Md.2020Background:
- Plaintiff Saqib Ali is a software engineer and BDS activist who personally boycotts Israeli-linked products and organizes advocacy against Israel’s policies.
- Governor Hogan issued Executive Order 01.01.2017.25 prohibiting state procurement contracts with business entities that boycott Israel and requiring a bid/contract certification that the bidder is not engaging in such a boycott and will refrain for the contract duration.
- Section B of the EO targets commercial/business boycotts; Section C is a bidder certification limited by language referencing bid preparation and subcontractor selection.
- Ali refused to sign the certification and alleges the EO and required certification (1) violate the First Amendment (viewpoint discrimination, compelled speech, prior restraint, unconstitutional condition) and (2) are unconstitutionally vague under the Fourteenth Amendment.
- The court previously dismissed Ali’s original complaint without prejudice and invited him to bid; after Ali amended, the court granted defendants’ motions to dismiss for lack of standing, finding no direct injury and no credible threat of prosecution or objectively reasonable chill.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — direct injury from being barred from contracts | Ali says the EO effectively renders him ineligible for state contracts because of his boycott, so he need not bid to show injury | Hogan says EO targets business boycotts only; Ali’s personal boycotts do not make him ineligible and he hasn’t lost any contract | No standing; Ali has not alleged a concrete, particularized direct injury because he has not bid or lost a contract |
| Standing — credible threat of prosecution (pre-enforcement) | Ali contends signing could expose him to debarment, perjury, or criminal penalties and thus faces a credible threat | Hogan/AG disavow enforcement as to personal boycotts and point to no enforcement history or threats | No credible threat; governmental disavowal and lack of past or threatened enforcement make prosecution speculative |
| Standing — chilled speech / self-censorship | Ali asserts the certification intimidates and chills his BDS advocacy and expressive conduct | Defendants say Section C is limited to bid-formation conduct; Ali remains free to continue personal boycotts and alleges no concrete self-censorship | No standing via chill; complaint lacks particularized, objectively reasonable allegations of self-censorship tied to EO enforcement |
| Interpretation of EO and scope of certification | Ali reads the EO and certification broadly to cover noncommercial/personal boycotts and other “other actions” language | Hogan interprets EO as limited to business/contractual decisions and disavows broader application | Court accepts Hogan’s reading as reasonable; certification limited to bid-related commercial discrimination |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, actual or imminent injury)
- Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (pre-enforcement standing requires intent to engage in conduct and a credible threat of enforcement)
- Cooksey v. Futrell, 721 F.3d 226 (4th Cir.) (concrete governmental warnings/red‑pencil review can create a credible threat and chilling effect)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (speculative or conjectural future harms do not establish standing)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (factors relevant to assessing enforcement threat in pre-enforcement First Amendment suits)
- Benham v. City of Charlotte, 635 F.3d 129 (4th Cir.) (relaxed standing considerations in First Amendment facial challenges still require injury in fact)
- Jordahl v. Brnovich, 336 F. Supp. 3d 1016 (D. Ariz.) (no‑boycott certification led to both direct economic injury and chilling for similarly situated contractor)
- Arkansas Times LP v. Waldrip, 362 F. Supp. 3d 617 (E.D. Ark.) (loss of a government contract due to refusal to sign no‑boycott certification established standing)
- Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717 (W.D. Tex.) (no‑boycott clauses in contracts found to chill contractor speech)
- Kenny v. Wilson, 885 F.3d 280 (4th Cir.) (past prosecutions support a credible threat of enforcement)