Committees in the Missouri House and Senate have voted to move forward with legislation that would require companies that receive state contracts to certify that they will not engage in a boycott of Israel. 

Gov. Eric Greitens has also said he would approve such a measure, which aims to combat the boycott, divestment and sanctions (BDS) movement against Israel. 

 That support comes despite the fact that if the state approves the measure, it could face a legal challenge. 

In January, a judge in Kansas ruled in a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of an educator that the state cannot enforce a similar law because it violates the plaintiff’s First Amendment rights. The organization has also filed a lawsuit against an anti-boycott law in Arizona. 

But the law in Kansas is different from the proposed legislation in Missouri in that the former does not specify that it is companies — rather than individuals — which cannot boycott Israel and still receive a state contract, according to Sen. Jill Schupp, a Democrat sponsor of the Missouri senate bill. 

“It doesn’t take away any individual’s right to boycott, to be pro or anti-economic development in Israel or (pro or anti) Israel’s relationship with the U.S.; it’s just corporations,” said Schupp of Creve Coeur.

The ACLU disagrees with that assessment and a representative from the organization testified in the Missouri Senate against the proposed legislation.

“This law seeks to tell individuals or businesses in Missouri what their political speech rights are,” said Jeffrey Mittman, executive director of ACLU of Missouri. “And the simple rule is that the First Amendment guarantees that we are protected from that sort of government censorship.”

The Missouri bills — lawmakers in the House and Senate have introduced separate proposals — are based on an anti-boycott law in Texas, according to Mike Minoff, co-president of St. Louis Friends of Israel, who has advocated for the legislation. 

The ACLU has not filed a lawsuit in that state, which is one of 20 to pass laws in opposition to the BDS movement. But the law did attract national attention in October when city officials in a Houston suburb required applicants for relief grants following Hurricane Harvey to certify that they do not boycott Israel. The Texas state representative who sponsored the legislation described it as a “complete misunderstanding of the statute.”

The Jewish Telegraphic Agency reports that the Texas law refers only to for-profit “companies” as the targeted boycotters and defines that “company” does not apply to an individual. It also lists six specific government entities — which does not include the relief grants program — that are required not to do business with the targeted companies.

In Missouri, proponents of the bill say they are not aware of companies that have supported boycotts of Israel and tried to do business with the state. Jenny Wolkowitz, a past president of the Jewish Light and one of the St. Louisans leading efforts to pass the legislation, described it as an effort to “get ahead of the curve and send a strong message to companies that seek to delegitimize and isolate Israel economically.”

In an email, she distinguished from companies versus individuals by stating that “individuals have the freedom to be as anti-Israel as they wish, but when they walk into the boardroom they must wear a different hat.”

The legislation also includes a provision stating that the law only applies to companies with state contracts for more than $10,000. That is meant to “weed out” the “mom and pop” shop contracts and instead only “target larger corporations whose boycott activities would have a substantial deleterious effect upon both Israel’s and Missouri’s economies,” Wolkowitz stated.

State Rep. Deb Lavender, D-Kirkwood, voted against the measure on the legislative oversight committee because she thinks it violates the First Amendment. She does not see the company versus individual distinction as legally valid.

Also she said she sees the anti-boycott effort as a matter of foreign policy.

“And I don’t think as a state representative of the Kirkwood-Glendale area that I have been given any powers at all to create foreign policy,” said Lavender. “Israel is an ally and I have a great respect for the people of Israel — both in Israel and the United States. It is not my intent to be anti-Israel at all and sometimes you need to take a vote that may go against common perceptions and that’s what I did.”

The ACLU of Missouri director also emphasized that the organization’s opposition to the legislation is concerned with free speech rather than any position on Israel policy.

“We hope that people know that because we are so strong on the First Amendment and because we protect a variety of opinions — whether popular or unpopular — that the effect of that is to protect individuals, particularly minority’s viewpoints, minority races, minority immigrant communities, minority religions,” said Mittman.

As to what the organization will do if the state approves the legislation, Mittman said, “we never prospectively talk about things that could happen or will happen…If it were to become law, we are always very good about making sure the public is aware of any effort to protect constitutional rights.”