373 F. Supp. 3d 717
W.D. Tex.2019Background
- Texas enacted H.B. 89 (Tex. Gov. Code § 2270.001 et seq.) prohibiting state entities from contracting with companies that "boycott Israel," requiring contractors to certify they do not and will not boycott Israel during the contract term. The statute defines "boycott Israel" by intent to "penalize, inflict harm on, or limit commercial relations" with Israel or entities doing business there.
- Plaintiffs are five sole proprietors (speech therapist, writers, students, reporters, debate judges) who participate in or support BDS and refused to sign no-boycott certification clauses; four lost or declined state contracts, one signed under protest.
- Plaintiffs sued state actors (Texas Attorney General, university boards, and school district trustees) seeking a preliminary injunction and § 1983 relief, arguing H.B. 89 violates the First and Fourteenth Amendments.
- Defendants moved to dismiss (sovereign immunity, standing, ripeness) and argued the statute targets conduct not speech and advances anti-discrimination and government-subsidy interests.
- The district court found it had jurisdiction (standing, Ex parte Young applies to board members), rejected ripeness and causation defenses, and granted Plaintiffs' motions for preliminary injunction enjoining enforcement of H.B. 89 and any "No Boycott of Israel" clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are BDS boycotts protected speech? | Boycotts are inherently expressive political conduct (Claiborne) and enjoy full First Amendment protection. | Boycotts are nonexpressive conduct; Rumsfeld v. FAIR shows regulated activity may not be "inherently expressive." | Court: Boycotts are expressive political conduct under Claiborne and thus protected. |
| Is H.B. 89 content- or viewpoint-based? | H.B. 89 singles out speech about Israel and targets anti-BDS views; therefore it is content- and viewpoint-based. | The law advances anti-discrimination, commerce, and government-policy interests; it is government speech or a neutral economic regulation. | Court: H.B. 89 is a content- and viewpoint-based restriction (not government speech) and is presumptively unconstitutional. |
| Does H.B. 89 survive scrutiny (compelling interest / tailoring)? | The State lacks a compelling interest in silencing anti-Israel boycotts; the law is underinclusive and not narrowly tailored. | The State advances preventing national-origin discrimination and aligning commerce with state policy (protecting an ally) as compelling; it may decline to subsidize boycotts. | Court: State failed to show a compelling interest; statute is underinclusive and not sufficiently tailored. Plaintiffs likely to succeed. |
| Do unconstitutional-conditions, compelled-speech, and vagueness doctrines bar H.B. 89? | Certification requirement conditions public-contract benefits on relinquishing speech, compels ideological declarations, and is vague (catch-all and "ordinary business purpose" unclear). | The requirement is a permissible condition on benefits or applies only to nonexpressive economic conduct. | Court: H.B. 89 imposes unconstitutional conditions, compels speech for impermissible purposes, and is unconstitutionally vague; preliminary injunction warranted. |
Key Cases Cited
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (political boycotts are protected First Amendment activity)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (examines when conduct is not inherently expressive)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulation of speech triggers strict scrutiny)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (viewpoint-based restrictions are especially pernicious)
- United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (heightened scrutiny where government broadly restricts employee speech)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public-employee speech rights against government-employer interests)
- Ex parte Young, 209 U.S. 123 (1908) (suits against state officers for prospective injunctive relief suing to enjoin ongoing federal-law violations)
- Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) (government may refuse to subsidize activities without violating First Amendment)