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Hogan defends anti-BDS order against free speech challenge in 4th Circuit

“One elected official is accountable to the voters for the parole of offenders who committed heinous murders and attempted murders. An appointed group such as the Parole Commission is less accountable for its exercise of such authority than the governor," Gov. Larry Hogan's office said in opposing legislation to remove the probation authority from the governor. (The Daily Record/File Photo)

Gov. Larry Hogan issued the executive order in 2017 after the General Assembly did not pass any legislation in opposition to the boycott, divest and sanction Israel movement. (The Daily Record/File Photo)

Counsel for Maryland Gov. Larry Hogan told a federal appeals court Thursday that his order requiring bidders for state contracts to forswear boycotts against Israel does not violate the constitutional right of a software engineer seeking government work to freely express his personal opposition to the Middle Eastern nation.

Hogan’s filing in the 4th U.S. Circuit Court of Appeals was in response to Saqib Ali’s appeal of a federal judge’s ruling that he lacks standing to challenge the order because his tech firm has not even applied for a state contract.

Ali, a former Maryland state delegate, told the 4th Circuit last month that he has not applied because the application would certainly be rejected based on the executive order. That order prohibits the anti-Israel boycotts he endorses due to the country’s treatment of Palestinians, Ali’s lawyers wrote in his 4th Circuit filing.

But Hogan’s counsel responded that Ali remains free to denounce Israel in his personal capacity because Hogan’s order is directed at corporate actions against Israel during the bidding process and for the contract’s duration.

In addition, U.S. District Judge Catherine C. Blake correctly ruled Ali has no standing to challenge the order “because he had not submitted a bid, much less had one rejected,” wrote Assistant Maryland Attorney General Adam D. Snyder.

“Finally, even if Mr. Ali’s fears come to pass and, at some point in the future, the governor or a reviewing court were to adopt a construction (of the executive order) that prohibits would-be vendors from speaking out against commercial relations with Israelis, that might provide standing then, but not now,” Snyder wrote.

“Such hypothetical future injuries never suffice to establish standing, for if they could, any plaintiff could challenge any law on the theory that it might be changed at some point in the future,” Snyder added. “All these factors weigh against Mr. Ali’s standing here, given that the order does not even apply to his conduct to begin with.”

Ali, a North Potomac Democrat, served in the House of Delegates from 2007 to 2011 and is running to regain a seat in next year’s election. In his lawsuit challenging the executive order, Ali said he supports boycotting those who “contribute to the oppression of Palestinians.”

Hogan issued the executive order in 2017 after the General Assembly failed to pass several bills in opposition to the boycott, divest and sanction Israel movement.

Supporters of the BDS movement generally oppose what they regard as Israel’s mistreatment of Palestinians. BDS has drawn fire from a large segment of the Jewish community that believes support for the movement is rooted in antisemitism and not opposition to Israeli policy.

Hogan has said his executive order is narrowly focused on ensuring that companies which bid on state contracts comport with the government’s interest in promoting tolerance of minority groups.

“The executive order … does not prohibit or punish anti-Israel boycotts generally; it places no limits on how business entities choose to act in the private marketplace,” Snyder wrote in Hogan’s district court filing. “The executive order makes clear that Maryland will not allow itself, through its purchasing decisions, to subsidize and become a passive participant in a form of national-origin discrimination that offends longstanding Maryland public policy.”

Ali, in papers filed last month in the 4th Circuit, stated through counsel that a bid for a state contract need not be submitted before a business owner can challenge an executive order that unconstitutionally discourages applicants from applying because of the opinions they hold and the views they express.

“The government is constitutionally prohibited from requiring contractors to pledge allegiance to its preferred policies,” wrote attorneys from the Council on American-Islamic Relations Legal Defense Fund, which is representing Ali. “State governments cannot condition employment on an oath that one has not engaged, or will not engage, in protected speech activities.”

The 4th Circuit has not stated when it will rule in the case.

The appeal is docketed at the 4th Circuit as Saqib Ali v. Lawrence Hogan Jr., No. 20-2266.

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