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Muslim Organizations Urge Gov. Rick Scott to Veto Bill Infringing On First Amendment Rights

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(TALLAHASSEE, FL, 2/25/2016) - The Council on American-Islamic Relations Florida (CAIR FL), the state's largest Muslim civil liberties and advocacy organization, and other prominent Legal, Civil Rights, and Constitutional Rights Organizations including Palestine Legal, The Center for Constitutional Rights, and the South Florida Chapter of the National Lawyers Guild, today sent a letter to Governor Rick Scott urging him to veto S.B. 86/H.B.527 arguing that the bills target core political speech and infringes on the freedom to express political beliefs in violation of the First Amendment of the U.S. Constitution.

CAIR Florida's Legislative and Government Affairs Director, Laila Abdelaziz, stated that this veto request is of utmost significance to all Floridians as the bills proposal to deny public contracts and public pension fund investments were motivated by a desire to suppress our constitutional rights of freedom of speech. "If not vetoed," she said, "these bills will unduly penalize blacklisted companies and individuals who may then refrain from adopting ethical political stances and human rights concerns regarding Israel/Palestine."

The organizations' letter to Gov. Rick Scott is reproduced below:
via e-mail
                                                                                                                
Governor Rick Scott
Executive Office of the Governor
400 S. Monroe Street
Tallahassee, FL 32399
 
February 25, 2016

   Re: First Amendment concerns with S.B.86/H.B.527
         
Dear Governor Scott,

             As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution, we write to convey our strong opposition to S.B. 86/H.B. 527. This bill would create a blacklist of companies that boycott Israel and would prohibit public entities from contracting with those companies. This bill would also prohibit the Florida Retirement System pension plan from investing in blacklisted companies. Regardless of one's views on Israel and Palestine, S.B. 86/H.B. 527 targets core political speech and infringes on the freedom to express political beliefs.

               Because S.B. 86/H.B. 527 is unconstitutional and violates basic American values and democratic principles, we urge you to veto it.

 A.  S.B. 86/H.B. 527 targets core political speech in violation of the First  Amendment

                  S.B. 86/H.B. 527 was introduced at a time when Palestinian human rights activists in the United States and elsewhere have embraced boycotts as a way to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights. This bill seeks to stifle this human rights movement by blacklisting companies that decide for ethical reasons to boycott Israel because of its human rights abuses, by denying such companies the right to enter into contracts with any state entity, and by requiring the state's pension funds to divest from blacklisted companies.

                  But government actions and restrictions cannot be based on the desire to punish First Amendment activities that aim to encourage social and political change in a nation's policies. The Supreme Court has stated that "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection."1 The Court has specifically held that boycotts "to bring about political, social and economic change," like the movement to boycott Israel, are unquestionably protected under the First Amendment.2
_________________________
1 See NAACP v. Claiborne Hardware Co., 458 U.S. 886,
 911(1982).
Id.
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  It is undisputed that individuals, institutions, and companies may boycott in response toissues of public concern, as some have done historically to challenge racial segregation in the U.S., the apartheid regime in South Africa, and currently, fossil fuel companies. Moves to boycott Israel cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such adifferentiation would constitute viewpoint discrimination prohibited by the FirstAmendment.

   It is important to differentiate S.B. 86/H.B. 527 from actions Florida has already taken against companies that have "prohibited business operations" in Iran and Sudan.3 Florida's restrictions on certain Iran and Sudan-based companies arise from the fact that the U.S. State Department has designated those countries as state sponsors of terrorism.4 This is very different than the goals of S.B. 86/H.B. 527, which targets companies based on their core political speech.

B. Denial of public contracts and public pension fund investment, were motivated  by a desire to suppress speech, violates the First  Amendment

 The United States Supreme Court has repeatedly affirmed that government officials' determinations about what views are acceptable cannot infringe on the First Amendment- protected right to freely express political views - however controversial or unpopular.5  Thus, in deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, "[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited." 6

  Yet this is precisely what S.B. 86/H.B. 527 would do. By denying public contracts to businesses that boycott Israel, S.B. 86/H.B. 527 seeks to penalize and inhibit protectedspeech. Similarly, prohibiting pension funds from investing in companies because they seek to uphold human rights would be tantamount to denying a benefit because of constitutionally protected speech. "Such interference with constitutional rights," the Court stated, "is impermissible."7

     This bill represents an action by public officials to thwart or penalize speech activities because  of the officials' disapproval of the content, and therefore is exactly the type of actionthat courts have      recognized violates the First Amendment. If enacted, it could be subject to constitutionalchallenge.

C.  Establishing a blacklist and penalizing blacklisted companies will have a chilling effect on protected  speech

     S.B. 86/H.B. 527 also infringes on protected First Amendment activities by subjecting political positions to government approval and penalty. This bill will chill the free speechrights of individuals and businesses by effectively dictating that a position supporting human rights is unacceptable. These individuals and businesses may refrain from adopting ethical political stances regarding Israel/Palestine - a matter of public concern - if they know that making business decisions based on human rights concerns could result in a financial penalty from the state.
 
 _______________________________
3  Protecting Florida's Investments Act, Chapter 2007-88, Laws of Florida; also, see Senate Bill 2142 (reg. session 2007).
4 See U.S. Department of State, Diplomacy in Action,http://www.state.gov/j/ct/list/c14151.htm.
5 West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters ofopinion.")
O'Hare Truck Service v. City of Northlake, 518 U.S. 712(1996).
Id.
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   In addition, this bill would also discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. While the bill does not directly prohibit such advocacy,it would effectively chill advocates' voices by exacting a toll on their goal, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it "does not mean that it was not being chilled into engaging in less speech than it otherwise would have."8 Even if other expressive activity, such as student and community activism urging companies to boycott Israel and respect Palestinian human rights, is not prohibited by this bill, such speech activities are likely to be chilled by this legislation.

D.  Conclusion

    We are committed to upholding the First Amendment rights of those opposing complicity in human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government interference. S.B. 86/H.B. 527 would punish individuals and companies that use an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. This bill is constitutionally indefensible, and its enactment could result in a legal challenge in order to protect the right of any individual or company to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing this bill to become law would threaten a crucial vehicle by which individuals and groups can make their collective voices heard. We urge you to veto S.B. 86/H.B.527.
Sincerely,
 
Rahul Saksena [Signed]
Staff Attorney, PalestineLegal
 
MariaLaHood [Signed]
Deputy Legal Director, Center for ConstitutionalRights
 
MaraShlackman [Signed]
V.P., South Florida Chapter, National LawyersGuild
 
LailaAbdelaziz [Signed]
Legislative & Government Affairs Director, CAIRFlorida
 _______________________________
 8  Housing Works, Inc. v. City of New York,  72 F. Supp. 2d 402, 421 (S.D.N.Y.1999).
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CAIR Florida's mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties of all people, empower American Muslims, and build coalitions that promote justice and mutual understanding.