Sorry I'm late.
I had to stop by the Wax Museum again and give the finger to FDR.
We know Al-Qaeda, Zawahiri, is supporting the opposition in Syria.
Are we supporting Al-Qaeda in Syria?
It's a proud day for America.
And by God, we've kicked Vietnam syndrome once and for all.
Thank you very, very much.
I say it, I say it again, you've been had.
You've been took.
You've been hoodwinked.
These witnesses are trying to simply deny things that just about everybody else accepts as fact.
He came, he saw, he died.
We ain't killing they army, but we killing them.
We be on CNN like, say our name, bitch, say it, say it three times.
The meeting of the largest armies in the history of the world.
Then there's going to be an invasion.
All right, everybody.
Introducing Steve Waskow.
And he's been writing this great stuff for the Libertarian Institute lately.
Beginning with anti-BDS laws versus the First Amendment.
And it's actually chock full of good news.
Welcome to the show.
How are you doing, Steve?
I'm doing great, Scott.
How are you doing?
I'm doing real good.
Hey, thanks for writing at the Institute, man.
You're doing a great job there.
And hope you don't feel any pressure to keep churning them out.
But at the same time, I sure do appreciate you filling my blog with great stuff every day here lately.
Well, no problem.
I hope to keep it up here.
It is getting to be summer, so I'm not sure I'll be as prolific, but I do hope to keep it up.
Yeah, no, whatever's fine, man.
Just whatever you want to do.
But I really appreciate that.
And it is, everybody, libertarianinstitute.org slash blog for all that great stuff.
This one is in the articles section, anti-BDS laws.
So you start off here with Marco Rubio and a case he made in the New York Times.
And I believe this gets right into a couple of different questions on the national level and on the state level.
The efforts of the anti-BDS movement to stifle the BDS movement.
So go ahead and I guess start with Rubio here.
Yeah, and Marco Rubio, it picked him because he's a pretty vocal supporter of these laws.
And I think he was one of the primary sponsors of the national law, the Combating BDS Act.
And of course, this is the New York Times, so it's important.
But it really wouldn't matter.
Any of these guys, whether it's Governor Abbott in Texas or Governor Cuomo in New York, they all use the same arguments.
And I think it's pretty much the arguments that AIPAC provides for them.
But one of the important things to remember at the time he wrote this article, that there's already been two court cases that have been decided.
There's been three total court cases and two of those court cases, one in Arizona and one in Kansas, that have both come down and decided that these laws do inhibit people's free speech.
And they are anti-constitutional in that they inhibit people's First Amendment rights of free speech.
So, of course, anybody who defends these laws is going to have to defend that position and say, well, the criticism that, hey, these things violate our First Amendment rights.
And they do that two ways.
One, they say that the acts don't infringe on American First Amendment rights or prohibit their right to engage in boycott.
By design, they're focused on business entities, not individuals.
And here he cites a court case called Rumsfeld versus Forum for Academic and Institutional Rights.
And we'll talk about that because the state of Texas also uses that case.
So one, he's saying that these laws don't target individuals.
So what they're doing is they're targeting businesses.
And he says that the First Amendment protects the right of individuals to free speech.
It does not protect the right of entities to engage in discriminatory conduct.
And so what they're saying is these laws, they don't target individuals.
They target businesses and they don't target speech.
They target conduct.
So the state has a right to come in and regulate business conduct, especially if that conduct is discriminatory.
And that's what they say here, that these are discriminatory actions.
And you kind of get that in the initial paragraph here where Rubio says that the BDS movement is an international campaign that embraces discrimination.
It's a discriminatory economic warfare against Israel.
And that the goal of the BDS movement is to eliminate any Jewish state between the Jordan River and the Mediterranean Sea.
I thought it was interesting he did call it the Jewish state.
So that's their basic argument.
Like I said, it's the same argument that they all use.
And in this case, it was exactly the same argument that the state of Texas used in its defense.
So I didn't go into the background of the case too much in the article.
And I recommend the judge's ruling here is actually very good and very readable.
I'm not a lawyer and I read it and I could understand it.
So if people want more information, I suggest they go in and read this.
But just to give you a little bit of background, this is a U.S. district court.
The judge is a U.S. district court judge.
His name is Robert Pittman.
The specific Texas law, and this is the District of Texas, so the Texas law that we're talking about is HB 89.
And that law basically prohibits state entities from contracting with companies that boycott Israel or any of the BDS activities, really not just boycotting.
So it provides that the state may not enter into a contract with a company for goods or services unless the contract contains written verification from the company that they don't boycott Israel at the time they sign the contract.
And they won't boycott Israel during the term of the contract.
And there's a lot more detail about it, but that's kind of the general gist of it.
Let me interrupt your flow just for a second just to point out that there's no loyalty oath you have to swear to the state of Texas or to the United States of America in order to get a contract.
But you have to swear essentially a loyalty oath to a foreign government, a promise that you will not boycott a foreign government.
Just never mind the legality of it, but just the question of it overall as policy, it's funny.
It just sounds ridiculous on the face of it.
And I guess then going along with that, it got an almost unanimous vote in the Texas legislature.
Yeah, there was only five people in the state legislature that voted against it.
Nobody thought that was ridiculous.
They just thought, yes, of course, we have to do this.
And no one laughed at them.
And no one said, are you kidding me?
Look at what this looks like.
This is crazy.
Why not have to swear a loyalty oath to any other countries in there, too, man?
And that's exactly what comes up in this case.
OK, so I'm sorry.
Go ahead.
No, no problem.
The case was brought by the national ACLU, the Texas ACLU and the CARE group, the Council on American Islamic Relations.
And they brought the suit on behalf of five people, five individuals.
And I think people are probably most familiar with the woman, Bahay Amawi.
She is a Palestinian American.
She's an American citizen.
She was active in the BDS movement.
And she did get quite a bit of national attention on this also.
She was trying to actually renew her contract with one of the school districts.
I think it was the Pflugerville School District in Texas there.
And she's a speech pathologist.
And because she speaks Arabic, she works with kids that are having trouble with language.
So she had worked for the school district for quite a while.
And she was trying to renew her contract.
And when she got the contract, she saw this section in there, because she was actively boycotting Israel.
She saw this section and just scratched it out and said, well, I'll scratch it out, sign it and send it into the school district here.
The school district rejected it and said, no, you can't do this.
The state of Texas requires that we put this in there.
And unless you're going to sign it as is, we can't renew your contract.
And she wouldn't sign it.
So she did not get her contract renewed.
And there's three other people that are in similar situations as her.
They were contracting with state agencies and mainly school districts is what they were contracting with.
And they saw these sections in there.
They were active in the BDS movement.
And so they wouldn't sign the agreements.
And there's one fellow, a guy named George Hale.
And he is a reporter with an NPR station that's licensed out of Texas A&M University.
So he had to renew his contract.
He saw it in there, but he signed the contract.
He probably didn't want to lose his job.
So he signs the contract.
So he had to stop his activities at the time.
And then he had to stop his activities during the entire term of his contract.
So it's important that you have two sets of people here.
You have people who didn't sign the contract.
And you have one guy that signed the contract.
And he was prohibited from boycotting Israel during the term of the contract.
So the defendants in the case are the state of Texas, the University of Texas system, and various school districts.
And the plaintiffs here are alleging that the no boycott clause, the clause that was in these contracts, chilled their right to free expression and they lost the opportunity to contract.
Or they were harmed because they could not boycott Israel during the term of the contract.
And that's what they were claiming.
And what they're seeking here is a preliminary injunction.
And I, not being a lawyer, I wasn't that aware of what preliminary injunctions are.
But an important point of that is the judge says that these are extraordinary remedies.
And this kind of relief is to be considered an exception rather than the rule.
And the entire burden of proof here lies on the plaintiffs.
It lies with the individuals that are involved here.
And it's no, you know, beyond a shadow of a doubt kind of thing.
They have to prove that they are actually going to succeed on the merits of the case.
In other words, they're going to win the case.
And that if the judge didn't issue this injunctive relief, they'd suffer irreparable harm.
So the proof is entirely on them to do this.
Right.
And that really goes to show, too, that the judge didn't think there's much question here at all.
No, because he, you know, cut to the chase, he does grant the injunction here.
And the state of Texas and the others, they tried to get some motions to dismiss the case and that type of thing.
But, you know, they didn't succeed.
The judges said, no, we're not doing that.
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OK, so can you go through then about the arguments about, well, no, because it's business, not individual people.
And which is funny because there's echoes of different arguments there.
And then, oh, no, it's behavior, not speech.
And OK, maybe it is speech, but it's discriminatory behavior.
And so, therefore, the judge grappled with all these arguments by the other side.
Yeah, he grappled with all those arguments and even more, actually.
So the first thing that Texas said is, look, they said we shouldn't even be involved in this.
And the law HB 89 doesn't affect these people because these boycotts were taken in their personal capacity.
They were doing this as individuals.
And that's the same argument Rubio made.
And so they said, you know, they basically were trying to get out of this case and saying, we don't even belong here.
We shouldn't even be arguing this.
We're going to throw these other people under the bus here.
But the problem they had is that some of these people were businesses.
They were registered as sole proprietorships.
And most likely in the contracts or to apply for these contracts, they would require that they have a Texas business license.
And so they were sole proprietorships, which means they were business.
And the plaintiffs in the case go on to say that, look, you can't separate.
We are businesses.
Do I understand right that the government was saying that, well, no, this should have never even applied to them in the first place.
They were mistaken if they read the contract to say that in their personal behavior outside of their profession representing the company that they work for.
That that wouldn't have applied and didn't matter anyway.
So that that's their argument about their own law.
That's their argument.
And that wasn't their argument in the first place.
But now it is to try to save it.
Yeah.
And I think at the time that Gal Bahia Amaui, when she got so much national attention, the state legislature came out and tried to clarify that basically and say, no, no, no.
This doesn't you know, these people don't fall under this law.
That's what the contract sure looked like, it said.
And then as you say, hey, if she's a sole proprietor or some of these others are, then same difference anyway.
And that's what the judge found, right?
Yeah.
He found basically that, look, he agreed with them.
He said these are businesses, they fall under HB 89 and you can't separate their business activity from their individual activity because that's what a sole proprietorship is.
And does it matter that it was a sole proprietor?
Because, of course, corporations are people, they do have rights.
And so how far does this go?
I mean, if it's a big enough company, then they're not allowed to participate in a boycott.
And the judge still leaves that open, maybe.
Well, he leaves that open because that's that that specifically he deals with these people in this case, and that's what they were.
So I know that there are some other court cases coming up, I think, in the state of Texas where companies, actual companies are suing the government also because of that.
And I think that the Citizens United decision will kind of affect that because they did find that companies are basically individuals.
So most likely some other cases are going to come up.
And even in my state here in Nevada, what they're doing on these laws is they're actually blacklisting companies.
And, you know, making lists of companies that are involved in the BDS and they're blacklisting them so they can't get these contracts.
So I'm sure there's going to be plenty of court cases that come up and they'll clarify that all.
By the way, for people who just knee jerk react against that corporations are people and have rights thing.
You know, Glenn Greenwald wrote a great defense of that Citizens United and said, oh, it has negative consequences.
You know, terrible conservative businesses and organizations donating to Republicans is something that he doesn't like as a result.
However, it's a simple thought experiment.
Does the ACLU have the Fourth Amendment right against unreasonable searches and seizures of their files?
Yes, they must.
So, end of argument.
That's it.
The ACLU is a corporation.
They must be protected by the Fourth Amendment just to the nth degree as everybody else.
Not everything in there is actual like lawyer documents that would be privileged in that sense, but must be protected by the Fourth Amendment overall.
And if that's true, then it's the same thing for Exxon and for everybody else.
Sorry.
Yeah, and I think it's going to be the same thing in this case, too.
So, Glenn Greenwald will have another reason to say, yeah, these are good laws here.
Right.
I mean, and think of that, too.
Where if they're trying to hide behind that and say, oh, no, they're only persecuting businesses and businesses don't have rights.
And you see the way that those kind of arguments cut both ways.
And after all, right?
Like, who has the power?
Conservatives.
So, who's going to abuse the power?
Conservatives.
And I think that's what they're trying to do in the Arizona law.
That got struck down a couple of years ago and they were trying to redefine it and narrow it down to what would be more, you know, be more targeted at businesses.
And so far, they've been unable to do it.
So now that this case comes out, I think they're going to have an even harder time.
Right.
OK, so going to the behavior thing that, hey, boycotting isn't speaking, that's different.
And there's a case with Donald Rumsfeld's name on it that says so.
Is that right?
There is.
Of course, anything with Rumsfeld name on it, you know, it's going to be bad.
Right.
And that's set for Andrew Coburn's book.
Sorry, go ahead.
And so once the judge has established that, what he's got to do is decide, yeah, are these boycotts or what they call expressive conduct?
And is that expressive conduct protected by the First Amendment?
And so here's where the state of Texas is arguing that Supreme Court case at Rumsfeld versus Forum for Academic and Institutional Rights.
And they're saying that this case showed that the act of boycotting does not fall under the First Amendment.
And that's the same case Rubio cited.
And in this case, there was a law school.
The law school was protesting the don't ask, don't tell policies of the military.
They wouldn't allow military recruiters on campus.
And the federal government tried to withhold funds from and some group tried to sue them for violating their First Amendment rights.
The plaintiffs in the case, the individuals, they relied on the NAACP versus Claiborne hardware case.
And they're arguing that boycotts under that case, Supreme Court case, were protected by the First Amendment.
So in this case, this was during the 1950s and the NAACP was calling for boycotts of white businesses in Mississippi that were discriminating against black people.
Black Americans and Claiborne hardware was actually seeking damages for that.
So they argued that unlike Rumsfeld, Claiborne specifically addresses boycotts and that the Supreme Court case did find that that was protected conduct under the First Amendment.
And they basically say that because, look, the NAACP was trying to achieve pretty major things here.
They were trying to get racial equality and integration.
And not only were these boycotts, but they were also accompanied by meetings, speeches and nonviolent picketing.
So they're in the context of the entire act of protesting these laws that they were doing.
They weren't just boycotting here.
And they also argue that there's a longstanding practice of this in the U.S. history.
And if you think back to even the founding of the country and the Boston Tea Party, what were the American colonists doing?
They were boycotting British tea because of the high taxes.
So he cites a number of these cases through history where the boycotts have been used.
So the judge says, looks at both cases and says, no, I think it's Claiborne because Claiborne speaks directly to boycotts and Rumsfeld does not.
And Texas tried to argue that, no, Claiborne isn't dealing with the act of boycotting.
What they're talking about is that the NAACP was calling for boycotts.
But Judge Pittman says, no, Claiborne expressively held that nonviolent elements of petitioner's activities are entitled to First Amendment protection.
Boycotts by themselves aren't protected, but boycotts are when they are accompanied by speech, assembly and petition.
They are inseparable.
So refusing to buy things in this context takes on special significance.
And in the Rumsfeld case, he goes on to say, look, they didn't talk about boycotts.
They didn't mention boycotts.
And the word boycott isn't even used.
So the judge says, no, I'm going to use this case of Claiborne to guide my ruling here.
And Glenn Greenwald in his article in The Intercept, Glenn Greenwald, he says this is the most important finding of the court, that everything hinges on this.
And the ACLU has been arguing this for a long time.
Right.
And of course, I mean, imagine if they'd ruled the other way.
Yeah, no, boycotting, that doesn't have anything to do with First Amendment protected political activity.
You know, it's essentially impossible they could find that way without just lying.
And as you say, the best they could do was come up with this case that was wholly irrelevant.
So didn't have much ground to stand.
What are they going to do, invoke Plessy versus Ferguson or something?
So but then and then so speaking of which they so this is the last argument then is discrimination that Jews in America are a religious minority.
And so therefore and in fact, at their religious minority in the land of Israel over there, too, by the way.
But so that means that this is discrimination.
Right.
And so that can't be protected.
Right.
Right.
And the other thing, just to add one other point to that, is that they decide that that is free speech and that it's inhibiting their free speech.
But the judge also and the plaintiffs are arguing that says, no, this is also compelling people's speech.
It's forcing them to take a side of an issue.
And the judge says they can't do that.
They can't force anybody to take a side on a political issue.
In fact, he says they can't even they can't even tell you to be neutral on a political issue.
So in other words, he wasn't impressed by the argument that this was about Jewishness in any way, that this was about politics and the state of Israel, whatever you call it.
Right.
In fact, when they're dealing with discrimination, they're dealing with the issue of that Rubio cited that this is business discrimination.
But the judge also says, wait a minute.
He calls it content and viewpoint based discrimination targeted against the plaintiffs.
So he's saying here, not only this doesn't discriminate against the plaintiffs here, but they've been discriminated against because of these laws.
Right.
In other words, it's not like saying you're not allowed in my store to sit at my lunch counter.
It's more like saying I'm not going to sit at your lunch counter.
How could you possibly say that that side of it is is the discrimination?
Come on.
Right.
And so you can see there are a lot of trouble here.
And on the discrimination issue, the judge looks at a number of things here.
He says these these these laws and this is kind of a funny one.
These laws are actually under inclusive because any company that wanted to boycott an Israeli person, a Jewish person, is free to do so as long as that person resides outside of Israel.
So it doesn't stop anybody from discriminating against a Jewish person.
People can do that as long as they're not in Israel.
That's the main thing.
And yeah, and the plaintiffs that the plaintiffs testify and, you know, they testify.
Look, we're not boycotting Jewish businesses.
We're boycotting companies that conduct business in Israel that are violating Palestinian human rights.
And these are the companies we're not boycotting them just because they're Jewish in Texas or Canada or anywhere.
And then the judge goes on actually to say, OK, well, let's look at what the state legislature and the governor says about these laws.
And he uses a number of examples here where they had that had nothing to do with discrimination.
In fact, the head of the legislature uses that same exact language Rubio uses, that it's economic warfare against Israel.
And he cites the governor that he says this is the motivating force behind HB 89 is hostility towards boycotts directed against a foreign nation.
And of course, the governor talks about, you know, the support of Israel and Texas sides with Israel.
And if you're anti-Israel, you're anti-Texas.
So the judge says even in their own briefing, they don't even talk about discrimination.
It's all about boycotts that are directed against a specific country.
And of course, the irony of the whole thing is, right, is that it's the Israelis who have a racist, discriminatory policy against the Palestinian Muslims and Christians who are the rightful owners of that land that have lost it and have remained under occupation and persecution this whole time.
And are now, if you include the so-called Israeli Arabs or the Palestinian citizens of Israel, then you're talking about, hey, maybe 52% of the people in what's called now, you know, essentially greater Israel, including Golan and the West Bank and Gaza.
They're more than half the people living under an apartheid dictatorship of the minority.
And that's who you're not allowed to boycott here in the name of discrimination, supposedly, which I guess I should add to that sanctions is something else.
I'm pro B and D, but I'm against S because I don't want the U.S. government to put sanctions on Israel, but I want them to stop paying them.
And I certainly am for any kind of boycott against them.
But yeah, and I don't think there's much fear that our government is going to put any kind of sanctions.
No, of course not.
Although I do think, you know, it's unfortunate maybe that the people who came up with this made no real distinction there.
Where boycott and divestment are nonviolent protests and where sanctions is entirely something else, you know, turning power against the same people you were just subsidizing.
I prefer the half measured.
Yeah, I agree.
I'm kind of not for the sanctions either.
I don't like them when they do it against Venezuela or Iran.
So I guess you have to be consistent and say, well, I don't really want them to do it against Israel either.
But then again, I mean, this whole thing could be arguing about their right to boycott against any other liberty that we do want.
And they still have the right to do that.
I mean, at the end of the day, without free speech, we're all sunk anyway.
And it's just as important of a natural right as anything else.
And certainly as a political and a civil construct inside the American system that we have the First Amendment and the right to participate in politics that it guarantees in those ways.
You know, without that, we're certainly much worse off.
So good news.
First of all, really great work in this piece and on the show today explaining it.
I really appreciate that.
And I hope everyone will look at this piece, Anti-BDS Laws versus the First Amendment, where you write about how this federal judge really did exactly the right thing.
And striking down, or I guess putting a, for now, a temporary injunction against this thing until it's settled.
But it already is going to be settled along the lines he's already argued it looks like here.
So great news and great job reporting it.
Thank you very much, Steve.
Thanks, Scott.
I appreciate it.
All right, guys, that is Steve Waskow.
He's been writing at the Libertarian Institute, libertarianinstitute.org.
Again, this one is called Anti-BDS Laws versus the First Amendment.
All right, y'all.
Thanks.
Find me at libertarianinstitute.org, at scotthorton.org, antiwar.com and reddit.com slash scotthortonshow.
Oh, yeah, and read my book, Fool's Errand, Timed and the War in Afghanistan, at foolserrand.us.
