A third federal judge has found constitutional problems with a state law, this time in Texas, aimed at punishing those who won’t pledge not to participate in boycotts against Israel.

This follows similar rulings in Kansas and Arizona. Only in Arkansas has a federal judge, Brian Miller, upheld one of these cookie-cutter statutes passed in more than two-dozen states. That was in the case brought by the Arkansas Times and the ACLU challenging the Arkansas law that says businesses must sign a pledge not to participate in Israel boycotts, or take a price reduction, in order to do business with Arkansas. The Times sued on First Amendment grounds, though it has not taken a position on the Israel boycott movement.


Texas, too, requires a pledge. Other media and other businesses in Arkansas have been willing to sign it rather than risk a loss of business. Judge Robert L. Pittman issued a temporary injunction against the Texas law, a signal of the likelihood of the suit winning at trial.

The effect of the certification was to “suppress unpopular ideas” and “manipulate the public debate through coercion rather than persuasion,” Pitman wrote in his opinion Thursday, quoting from the 1994 Supreme Court case Turner Broadcasting System, Inc. v. FCC, which dealt with must-carry requirements imposed on cable television.

“This the First Amendment does not allow,” the judge held.

The fact that the measure was approved by an overwhelming majority, and that it had parallels in numerous other states, did not bolster the state’s case, the judge reasoned.

“Texas touts these numbers as the statute’s strength,” he wrote. “They are, rather, its weakness.” The Bill of Rights was designed to protect unpopular individuals and their ideas, he observed, rather than to ratify political orthodoxy.

The victories for free speech in Kansas and Arizona and the defeat in Arkansas are all on appeal. Texas naturally vowed to fig