Minnesota bill targeting boycotts of Israel risks chilling campus speech

Over the past year, a number of state governments have attempted to curtail boycotts of the state of Israel, often in response to student-led efforts to commit their universities to “boycott, divest, and sanction” Israel. In Minnesota, one such bill was adopted by the state’s House of Representatives last week, despite criticism from the ACLU of Minnesota on First Amendment grounds. If the bill is ultimately passed into law as written, it will create a substantial risk of chilling student and academic speech at Minnesota’s public campuses.

Minnesota’s HF 400 provides, in relevant part:

Discrimination by vendor. (a) A state agency, including the Minnesota
State Colleges and Universities, and entities in the legislative branch may not enter into a contract with a vendor that engages in discrimination against Israel, or against persons or entities doing business in Israel, when making decisions related to the operation of the vendor’s business.
(b) For purposes of this section, ‘discrimination’ includes but is not limited to engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel, when such actions are taken in a manner that in any way discriminates on the basis of nationality or national origin and is not based on a valid business reason.

FIRE has several concerns with HF 400 as written.

First, the language of the bill can be construed to include speech. Advocating for boycotts of Israel—as do a number of prominent scholars and public intellectuals who work and speak on university campuses—could be considered “other actions that are intended to limit commercial relations with Israel,” potentially sweeping expressive activity into the reach of the statute.

Second, the bill expressly names Minnesota’s public colleges and universities, then requires them to avoid doing business with any “vendor” that engages in these actions. But the bill does not define the term “vendor,” nor does Minnesota law appear to provide a consistent definition of the term. One definition promulgated in Minnesota is quite broad, asserting that “vendor” refers to “a provider of goods or services.”

Given that the bill expressly targets universities and provides no definition of “vendor,” it makes sense to look at how universities have traditionally used the term. This is where problems arise.

Many universities treat public speakers and lecturers as vendors when entering into contracts for public appearances and speeches. This includes speakers invited by the university itself as well as those invited by student organizations, as it is often the university itself which enters into contracts on behalf of the student organization. At the University of Minnesota, for example, the school’s “Supplier Authorization/Change Form” (referred to elsewhere as the “Vendor Authorization Form”) lists “Speaker/Lecturer” as one of the types of services provided. Similarly, St. Cloud State University has a form that is to be “filled in by all nonresident alien vendors, including speakers[.]”

Because HF 400 can be read to apply to speakers invited to address audiences at public universities, it places an unacceptable limitation on whom students or faculty may invite to speak. Notably, the law would “not apply to contracts with a value of less than $1,000.” Similar bills in other states have applied a monetary threshold high enough that it is unlikely to ever apply to a public speaker or lecturer. By contrast, the $1,000 threshold here is low enough to apply to campus speakers in a discriminatory manner. As written, the proposed Minnesota law means students and faculty could only invite a speaker who boycotts Israel if he or she agreed to reduce speaking fees to less than $999. Speakers who do not boycott Israel, however, could charge as much as they’d like.

The proposed law also says that it would not prohibit “a vendor from engaging in free speech” protected by the First Amendment. However, adding a disclaimer that a law encompassing speech acts is not intended to prohibit free speech does little to meaningfully clarify the issue. These disclaimers, known as  “savings clauses,” may superficially comfort legislators and others concerned about the impact of legislation on civil liberties, but they do little to actually address the thorny issues raised by the legislation. If Minnesota legislators wanted to meaningfully prevent this application of the law to campus speech, they could readily exempt public speakers or advocacy groups from the law’s primary functions.

FIRE takes no position on the movement to boycott, divest from, or sanction Israel, except to the extent that some decisions made in the movement’s name — or in opposition to it — could impair academic freedom (such as if a university or professional association enforces a boycott and prevents its members from interacting with scholars who live in Israel.)

However, students and professors must be perfectly free to support, or oppose, a boycott of Israel or any other country they wish, and to engage with speakers and lecturers who engage in or promote such efforts.

HF 400’s companion bill, SF 247, still requires approval by the Minnesota Senate for the proposed law to take effect. FIRE hopes that Minnesota’s Senate will decline to pass this measure as written or, should the measure pass the Senate, that Minnesota’s governor will veto it. The ability of students and faculty alike to invite speakers of their choosing should not be subjected to litmus tests based on the views of other people.