Monday, April 27, 2020

Fifth Circuit Anti-BDS Lawsuit Dismissed as Moot

By Eugene Volokh - April 27, 2020 at 03:23PM

The Fifth Circuit panel held that, because Texas's law had been narrowed in a way that excluded these particular plaintiffs, the challenge should be dismissed:

This appeal touches on the Israeli-Palestinian conflict. In 2017, Texas enacted a law that forbids its governmental entities from contracting with companies who engage in economic boycotts of Israel. The plaintiffs, who support the Palestinian side of the conflict, then brought two separate suits for declaratory and injunctive relief in federal district court, alleging that requiring "No Boycott of Israel" clauses in Texas government contracts violates the First Amendment. After the two suits were consolidated, the district court held that the plaintiffs were likely to succeed on the merits of their claims that the First Amendment prohibited Texas's "No Boycott of Israel" certification requirement. The district court then preliminarily enjoined the enforcement of "No Boycott of Israel" clauses in all contracts with Texas governmental entities. Whether that ruling was correct has been the subject of wide and intense debate, as demonstrated by the fourteen amicus briefs filed in this appeal.

This opinion will not address that debate, however. Instead, we have decided that this appeal is moot because, twelve days after the district court's ruling, Texas enacted final legislation that exempts sole proprietors [and certain other businesses] from the "No Boycott of Israel" certification requirement. The plaintiffs are all sole proprietors….

For more on the lawsuits, and Prof. Michael Dorf's, Prof. Andrew Koppelman's, and my argument on why the anti-BDS laws being challenged generally don't violate the First Amendment, see here. The Eighth Circuit case was argued three months ago, and I expect that the panel will likely decide the case on the merits.

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