Executive agencies may not execute a procurement contract with a business entity unless it certifies, in writing when the bid is submitted or the onset is renewed, that:1. it is not engaging in a boycott of Israel; and2. it will, for the duration of its contractual obligations, refrain from a boycott of Israel.
The Council on American-Islamic Relations legal team sued Governor Hogan on behalf of Saqib Ali, a software engineer and former legislator who is running to regain a set at Maryland's House of Delegates.
Ali argued that the executive order violated his right to free speech and that it imposed a type of "loyalty oath" to Israel.
The argument was rejected by U.S. District Judge Catherine C. Blake and this has now been upheld by Maryland's 4th Circuit.
Saqib Ali cannot sue Hogan because Ali had not applied for a state contract and been rejected and thus cannot claim an “injury” due to the governor’s executive order, the 4th U.S. Circuit Court of Appeals stated in its published 3-0 decision.The 4th Circuit also rejected Ali’s argument that the order’s required pledge violates his constitutional right to speak freely against Israel, whom he believes oppresses Palestinians. The court said the order does not infringe on the First Amendment because it addresses “actions” taken against Israel by the contractor in the bidding process and does not interfere with an individual’s “beliefs or political ideology.”“That is, the executive order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid,” Judge Robert B. King wrote. “It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.”King was joined in the opinion by Judges Stephanie D. Thacker and Pamela A. Harris.“Given the plain meaning of the executive order and the allegations of (Ali’s) complaint, we are unable to accept the proposition that Ali is prohibited from signing the Section C certification and submitting a bid on a Maryland procurement contract,” King wrote. “As such, we reject Ali’s related theory that he possesses standing to sue premised on a direct injury.”
The BDSers have been challenging many of the state anti-BDS laws on the grounds of violating free speech, and this ruling shows that the actual boycott of goods and services from Israel is an action, and not just speech.
