To: Senate Government Affairs Committee
Date: March, 19, 2017
Re: Opposition to SB 26
Hearing Date: Monday, March 20, 2017, 1:00pm
Dear Chairman Parks and Members of the Senate Government Affairs Committee:
AMERICAN CIVIL
LIBERTIES UNION
OF NEVADA
601 S. RANCHO DRIVE
SUITE B11
LAS VEGAS, NV 89106
P/ 702.366.1536
F/ 702.366.1331
1325 AIRMOTIVE WAY
SUITE 202
RENO, NV 89502
P/ 775.786.1033
F/ 775.786.0805
WWW.ACLUNV.ORG
Founded almost 100 years ago, and 50 years ago, respectively, the ACLU and
ACLU of Nevada serve as guardians of the U.S. Constitution. We defend the rights and
liberties guaranteed by the Constitution no matter how popular or unpopular those rights
may be. However sympathetic one might be to the cause the government seeks to
support, the constitutional rights to free speech cannot depend on whether the content of
the speech is admired or abhorred. Nor can any governmental right to speak in aid of its
interests outweigh the individual right of its people to disagree. If governmental speech
rights trumped individual speech rights, the First Amendment would have no meaning.
SB 26, as proposed by the Lt. Governor, would prohibit both state and local
governmental entities from contracting with companies and contractors who engage in,
or declare support for BDS (Boycott, Divest, and Sanction) against the State of Israel.
The bill would also require divestment of the State’s investment funds in any investment
fund similarly associated with BDS. The American Civil Liberties Union of Nevada
regrets to inform you that we must respectfully oppose SB 26 as introduced because it
would punish constitutionally-protected freedoms of speech and association.
In the context of the constitutional implications of SB 26, we must remain
neutral in the debate this bill seeks to address and thus we take no position on either side
of that debate. We do however, assert that states should not base their contracting or
investment decisions solely on political viewpoints or opinions.
As introduced, SB 26 facially discriminates on the basis of the business entity’s
viewpoint. Section 5 states, “A governing body or its authorized representative shall not
enter into a contract with a company unless the contract includes a written certification
that the company is not currently engaged in, and agrees for the duration of the contract
not to engage in, a boycott of Israel [emphasis added].” Section 5 requires a specific
statement (speech) by the contractor to align with the State’s political position, or
penalties will be suffered by the contractor. Contractors may refuse to sign the contract
with this provision, feel threated to state their true belief, or falsify their true belief. To
compel a contractor to declare alignment with the State’s preferred political position is a
violation of the First Amendment of the U.S. Constitution, and Article 1, Sec. 9 of the
Nevada Constitution.
AMERICAN CIVIL
LIBERTIES UNION
OF NEVADA
601 S. RANCHO DRIVE
SUITE B11
LAS VEGAS, NV 89106
P/ 702.366.1536
F/ 702.366.1331
1325 AIRMOTIVE WAY
SUITE 202
RENO, NV 89502
P/ 775.786.1033
F/ 775.786.0805
WWW.ACLUNV.ORG
The Supreme Court has held that “speech on public issues occupies the highest
rung of the hierarchy of First Amendment values, and is entitled to special protection.”1
Boycotts “to bring about political, social and economic change” through speech,
association, assembly, and petition are unquestionably protected under the First
Amendment.2 “In many different contexts … the Supreme Court has made clear that,
although the government is under no obligation to provide various kinds of benefits, it
may not deny them if the reason for the denial would require a choice between
exercising First Amendment rights and obtaining the benefit.”3 “Where the denial of a
benefit, subsidy or contract is motivated by a desire to suppress speech in violation of
the First Amendment, that denial will be enjoined.”4 More specifically, the Court has
ruled that the Constitution prohibits governments from conditioning eligibility for public
contracts upon the political affiliation of those bidding for a contract.5
Just as the government may not exercise its sovereign power against its people in
retaliation for their political speech, it cannot deprive them of valuable financial benefits
to chill their speech on matters of public concern without a compelling governmental
interest – and unquestionably not because it prefers another view.
Additionally, should the bill proceed as introduced, contractors who refuse to
sign or declare their alignment with the State’s preferred political position would have
grounds to sue and seek relief from and damages for the violation of their Constitutional
rights, and the cost to the State could be enormous.
Furthermore, Senate Bill 26, section 21.1-2 would require State staff to “identify
each scrutinized company,” and to “create a list of all scrutinized companies.” By
requiring that state staff create a blacklist of disfavored “companies,” based on
“publicly available information regarding which companies are engaging in a boycott
of Israel, including, without limitation, information provided by nonprofit organizations,
research firms, international organizations and governmental entities.”
1
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982)
Id., at 913
3
Brooklyn Institute of Arts and Sciences v. City of New York, 64 F. Supp.2d 184, 200 (E.D.N.Y. 1999).
4
Id.
5
See Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996); O’Hare Truck Service, Inc. v.
City of Northlake, 518 U.S. 712, 726 (1996).
2
This “blacklist” would be based on an arbitrary system subject to the whims,
frailties, and biases of the staff and public who collaborate to create it. Companies would
again be subject to a preferred political view test and punished without due process.
There should be no doubt that companies who are blacklisted would seek relief from the
designation and pursue remedies and damages accordingly.
AMERICAN CIVIL
LIBERTIES UNION
OF NEVADA
601 S. RANCHO DRIVE
SUITE B11
LAS VEGAS, NV 89106
P/ 702.366.1536
F/ 702.366.1331
1325 AIRMOTIVE WAY
SUITE 202
RENO, NV 89502
P/ 775.786.1033
F/ 775.786.0805
WWW.ACLUNV.ORG
The State of Nevada has every right to declare its beliefs and principles through
resolution and legislation so long as those declarations do not punish or infringe on the
rights of the people to express their disagreement or associate in opposition to those
declarations. The Supreme Court has upheld the First Amendment rights of expression
and association repeatedly and we believe Senate Bill 26 violates these rights.
“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 of opinion.”6
To uphold the right to engage in a boycott is not necessarily to support its aims
or objectives – just as to uphold freedom of speech is not to endorse the ideas expressed.
We appreciate your consideration of our analysis and please do not hesitate to
contact us if you have any questions or concerns.
Sincerely,
Tod Story
Executive Director
6
Holly Welborn
Policy Director
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 640 (1943).