A & R Engineering and Testing, Inc. v. Paxton

A lawsuit challenging Texas’s anti-BDS law

On June 22, 2022, the Knight Institute filed an amicus brief on behalf of 12 prominent First Amendment scholars in A&R Engineering and Testing, Inc. v. Paxton, a case in which the U.S. Court of Appeals for the Fifth Circuit is considering a challenge to a Texas law requiring state contractors to certify that they will not boycott Israel or Israeli companies.

Texas is one of 35 states that has adopted laws, executive orders, or resolutions that suppress boycotts associated with the “Boycott, Divestment, and Sanctions” (BDS) movement—a political movement that seeks to influence Israeli policy and U.S. policy towards Israel. Texas’s law requires state contractors to attest that they will not participate in BDS for the duration of any contract they receive from the state. A previous version of this law was initially enjoined by a federal district court, but the injunction was vacated, and the case dismissed as moot, after the law was amended to exclude sole proprietorships. A&R Engineering and Testing, a company whose owners participate in BDS boycotts, challenged the new law.

The Knight Institute's brief explained that the law attracts First Amendment scrutiny for two reasons. First, the law targets political boycotts by consumers, which are protected under the Supreme Court’s landmark ruling in NAACP v. Claiborne Hardware Co. Second, the law sweeps in pure political advocacy by defining “boycott Israel” to include “any action” that is intended to penalize or inflict economic harm on Israel.

The Knight Institute filed similar amicus briefs in Amawi v. Pflugerville Independent School District, the previous challenge to Texas’s anti-BDS law, and Arkansas Times v. Waldrip and Jordahl v. Arizona, challenges to similar laws in other states.

Status: On January 28, 2022, the U.S. District Court for the Southern District of Texas held that Texas’s anti-boycott law is likely unconstitutional, and enjoined Texas officials from enforcing the law against A&R Engineering. An appeal from this decision is currently pending before the U.S. Court of Appeals for the Fifth Circuit.

Case Information: A & R Eng'g and Testing, Inc. v. Arizona, No. 22-20047 (5th Cir.).

Legal Filings

Click to highlight response chains