The US Court of Appeals for the Fourth Circuit dismissed a challenge on Friday to Governor Larry Hogan’s 2017 executive order banning government contractors from engaging in boycotts against Israel.
Plaintiff Saqib Ali argued that this requirement violated his First Amendment right to free speech, but the appellate court upheld the lower court’s finding that Ali did not have standing because his bid was not rejected due to his support for anti-Israel movements.
Ali argued that he had standing because he could not in good faith sign a portion of the bid that required applicants to swear that they had not discriminated against subcontractors affiliated with Israel.
The court also assessed Ali’s boycotting actions to determine whether they fell within the executive order’s anti-boycotting provisions. Hogan had previously advised that the order only prohibited boycott actions that took place during the contracting process, such as selecting subcontractors or vendors that have ties to Israel. Ali claims that his boycott actions are limited to “refus[ing] to purchase Sabra hummus or Sodastream products.”—i.e. a boycott action unrelated to the contracting process. The Fourth Circuit accepted the governor’s interpretation over Ali’s argument, finding that the limited scope of the ban was more reasonable and supported by the order’s text.
The court concluded:
If a business entity has engaged in anti-Israel national origin discrimination in the process of preparinga bid for a state procurement contract, the Executive Order would bar that entity from being awarded the contract. If…the entity has engaged in a boycott of Israel entirely unrelated to the bid formation process, the Executive Order is of no moment.
The court also rejected Ali’s argument that the pledge against boycotting was an unconstitutionally vague loyalty oath.
Several other states have banned boycotts of Israel, which pushes back on a movement known as “boycott, divestment, sanctions,” or BDS, that seeks accountability for Israel’s mistreatment of Palestinians. Ali based his arguments on cases challenging similar bans in Arkansas and Texas.