Everything You Wanted to Know about Anti-BDS Laws, Part II

My second and final post debunking various misconceptions and bad legal arguments about anti-BDS laws

|The Volokh Conspiracy |

PART I can be found here.

State laws regulating contractors' dealings with foreign entities and associated companies are not novel. Many opponents suggest that states have no interest in foreign policy or what foreign governments to, so anti-BDS laws are an unprecedented gambit for state governments explicable only by the nefarious power of the Israel lobby. False. During the 1980s, many states passed laws banning state contractors from dealings with South Africa. No one at the time suggested that contractors had a First Amendment right to deal with South Africa, even if they wanted to do so for ideological reasons (either to show support for South Africa, or because they thought that a boycott would hurt the average South African black, or because they thought that commercial relations would help undermine South African apartheid, or whatever). While those laws had the opposite intent–ban commercial contact with a country, rather than ban boycotting a company–there is longstanding precedent that states may condition contracts on how and whether contractors react to boycott movements.

Laws banning boycotts of Israel aren't unprecedented. Federal law has banned U.S. entities from participating in or complying with the Arab League boycott of Israel since the late 1970s. Note that this includes U.S. entities that might want to comply with the boycott because they agree with it. This law has been around for forty-plus years, and has never been subject to a successful First Amendment challenge. This should give you some idea of how legally farfetched the challenges to state anti-BDS laws are.

Traditional antidiscrimination laws aren't special because they apply to "constitutionally protected classes": As is clear from the FAIR case, one reason that the Supreme Court has been unwilling to give boycotts First Amendment protection is that doing so would threaten the constitutional viability of "classic" antidiscrimination laws, because there is no clear analytical distinction between refusing to deal with members of a group (clearly discrimination) and a boycott.

In writing about this issue, I've consistently come across the weird claim that one can't draw an analogy between antidiscrimination laws and anti-BDS laws because antidiscrimination laws protect members of minority groups protected by the Constitution, whereas anti-BDS laws do not. Boys and girls, let's pull out our pocket Constitutions. There are no special "protected classes" under the constitution. There is no plausible textual or precedent-based argument that laws banning discrimination based on race, sex, etc. are exempt from First Amendment scrutiny but anti-BDS laws are not because of the category protected.

In the unlikely event the Supreme Court chose to declare that economic boycotts are protected speech unless the boycotts involve certain protected categories such as race, ethnicity, sex, etc., that still would not likely help campaigners against anti-BDS laws. I can imagine one route the Supreme Court could (but won't) take that might seem useful to those who oppose anti-BDS laws. The Court could, in theory, reverse current precedent and say that economic boycotts are speech protected by the First Amendment, but that laws prohibiting discrimination against "suspect classes" serve a compelling interest and therefore are constitutional. In other words, boycotting black people can be banned, but boycotting, say, Caterpillar for its dealings with Israel cannot.

First, I don't think the Court is inclined to hold that economic boycotts are speech. Second, the Court, after flirting in the 1980s with the notion that antidiscrimination laws should not be limited by First Amendment concerns because of the government's compelling interest in eradicating discrimination, unanimously rejected that notion in both the Hurley case and Boy Scouts v. Dale case (Dale was 5-4, but not on that issue).

Third, let's assume the Court did go down that route. Are laws prohibiting contractors from boycotting Israel a compelling interest? No? Says who? Oh, because they aren't based on traditionally-protected categories? Various state courts have held that laws banning discrimination based on sexual orientation ban discrimination against same-sex weddings, because same-sex weddings are closely associated with homosexuals. I think that reasoning is bogus, but it's widely accepted in the same circles that oppose anti-BDS laws, such as the ACLU. By the same token, Israel, as the only Jewish-majority country in the world, is closely associated with Jews. And boycotting people who do business with Israel will have a wildly disproportionate effect on Jews. So under modern antidiscrimination principles, if a state argued that it was banning Israel-related boycotts to protect Jews from anti-Semitism a court would have a hard time gainsaying the notion that this is also a "compelling interest." This is espcecially true because it's well-documented that the BDS movement originated at an explicitly antisemitic international conference in Durban, South Africa in 2001.

States have a non-ideological interest in prohibiting the contractors from engaging in Israel-related boycotts. Imagine a state government contracts with a company for cybersecurity. The company boycotts Israeli software. By far the best software for the job is Israeli-owned Checkpoint, which will cost $50 million. The company, however, boycotts Israel, so it goes with inferior McAfee software, which costs $75 million. The state winds up with worse software and a bill for an extra $25 million. Why would any state agree to contract with someone who might do this?

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45 responses to “Everything You Wanted to Know about Anti-BDS Laws, Part II

  1. “Laws banning boycotts of Israel aren’t unprecedented.”

    To clarify, the US anti boycott laws are not Israel specific and they only prohibit US companies from boycotting another country (unless of course the US govt has an overall boycott in place of that country, then it doesn’t really matter).

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  2. The whole point of a boycott is to go beyond speech into the arm-twisting of economic damage. This would be a freedom of association issue, not freedom of speech.

    I guess, like porn, the proper, i.e. allowable, use of this one knows it when one sees it.

    1. I had never understood me deciding not to do business with another person as being economically damaging or coercive to the other person, since it was my money to do with how I pleased. However, me being forced to do business with someone I don’t want to do business, does strike me as coercive, and economically damaging.

  3. I am pretty sure that a boycott against a country is an act of war, or at least a casus belle. Additionally, every country has an obligation to prevent acts of war emanating fro within its borders, even if the country itself did not aid or abet the attack. Therefore, it could be argued that any country has a duty to prevent boycotts by its citizens against a fellow country in a state of peace with it.

    1. “I am pretty sure…”

      Why?

      “Therefore, it could be argued…”

      Are you making the argument?

    2. Casus belli, and no, it isn’t (we’re at war with Iran?), especially on the part of private actors.

    3. re: “a boycott against a country is an act of war”

      No, it’s not. Never has been, not even when the boycott was instituted at the direct and explicit direction of the monarch. It most certainly has never been considered an act of war when individual citizens participated in a boycott.

      1. Right; the original commenter may be confusing a boycott with a blockade. The latter is indeed an act of war (but only if engaged in by a country, not an individual citizen).

  4. What if the parties are consenting adults?

    Wait, you said BDS, never mind.

  5. Considering the reasoning that e.g. the seventh circuit courts of appeals used to hold that the. Civil Rights Act of 1965 covers discrimination on the sexual preference – discriminating on the basis of sexual preference is bad, so obviously a discrimination law must cover it – I don’t think the argument that discrimination laws are categorically different from antiboycott laws is as the post is suggesting. The same force of logic that concludes that discrimination laws prohibit shunning all objectively good people would equally seem to imply that it can’t prohibit shunning objectively bad people.

    If one takes the view that it’s just as clear that Israel is objectively bad as (say) homosexuality is objectively good, everything follows. Discrimination is what bad people do to to
    Good people. Boycotts are what good people do to bad people. Therein lies all the difference. What else is the constitution for if not to enable the objectively good people to have a leg up over the objectively bad people? Of course the constitution permits boycotting bad people. It may well require it. It only prohibits discrimination against good people.

  6. (Cont)

    The arguments you are using, that boycotting is the same physical act as discriminating, go no further from this viewpoint than the argument that same-sex preference in domestic relationship involves the same kind of act as “discriminating” on the basis of sex in work relationships – both types feel happier when with people of heir own gender, and choose associates that make them happy.

    The argument against this is obvious – “discrimination” is objectively wrong, evil, something government exists to prohibit, while “preference” is objectively right, good, something government exists to protect.

    From this point of view, the difference between “discrimination” and “boycott” is just as objectively real and obviously present in the constitution as the difference between “discrimination” and “preference.” And attempting to conflate the two is just as objectively absurd.

  7. So the constitution gives you the freedom to refuse to provide your employees with birth control based on conscience, but not to participate in a boycott based on conscience? Seems legit.

    1. Actually, no, and that isn’t what Hobby Lobby said. It was a RFRA case, not a 1st Amendment case. I disagree with that ruling but it was statutory, not constitutional. In fact Employment Division v. Smith makes clear that the birth control mandate wasn’t unconstitutional.

    2. The RFRA would apply with equal force to someone who boycotted Israel based on a sincerely held religious belief.

      1. (If it was a federal law. State RFRAs might apply to state laws, depending on the jurisdiction.)

  8. Regardless of the power of state governments to pass and enforce anti-BDS laws, the purpose of these laws is to benefit Israel. Why is that important to US states? How does it benefit the citizens of those states to have these laws?

    These laws are only a result of the power of the pro-Israel lobby, have everything to do with suppression of a movement that the Israeli government does not like, and are in no way designed to benefit the citizens of the states.

    The suggestion that opposition to anti-BDS laws is anti-Semitic is absurd. The BDS movement is meant to be a counter to the policies of Israel, not a way to oppress Jews.

    1. Opposition to anti-BDS laws isn’t anti-Semitic, and no one suggested it is. The BDS movement is anti-Semitic. As noted, it originated at an anti-Semitic conference, and it’s goal is not to “counter the policies of Israel,” but to see Israel destroyed. Not every individual supporter of BDS agrees with that goal but that is the unhidden goal of the movement>

      1. It would be really strange for the BDS movement to be antisemitic, and opposition to anti-BDS laws to not have some antisemitic supporters.

        Better to say that there are some plausible reasons to oppose such laws even if you’re not an antisemite.

      2. (1) When I see arguments like this, I try to work out the logic. For instance, suppose there was harsh violent rhetoric at some ur-conference on an economic boycott against the apartheid South African regime. Would that make every supporter of sanctions thereafter racist? If an early leader of Israel’s founding said something anti-Palestinian and bigoted, would that make Israel a racist state?

        (2) Then I remember this “argument” is just a cheap trick, transparently meaningless.

        (3) But it’s just possible Professor Bernstein actually believes it. To keep things close as possible to reality, let’s say he believes 50.01% of all BDS supporters are anti-Semitic, wanting nothing but the “destruction of Israel”. He would find that belief useful and comforting. People like to believe things useful and comforting.

        (4) But even given that implausible “belief”, it might be honest of him to consider the (implausibly low) remaining 49.99% – and not just foist everything off on anti-Semitism.

      3. “The BDS movement is anti-Semitic. As noted, it originated at an anti-Semitic conference…”

        Can you clarify? Wikipedia traces it back to the Arab League in 1945. Is that what you’re talking about?

    2. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

      1. You know that American public opinion is slowly but surely changing, right?

        1. Actually, support for Israel in the polls is at its highest level, ever. You probably mean that young people are less supportive than old people. That may portend the future, but maybe not.

        2. If you include the opinions of worthless third-world Hispanics and Muslims in the definition of “American public opinion,” then yes.

      2. While true, the power of the pro-Israel lobby is greater than public support for Israel in the US. As an example, Israel receives aid (most favored nation) disproportionate to its polling status (~5th among Republicans, probably around 17th in total).

    3. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

    4. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

    5. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

    6. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

    7. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

    8. And the power of the pro-Israel lobby is a direct result of American public opinion favoring Israel. Should American governments ignore public opinion, just because a noisy minority, mostly on the left, are antisemites?

      1. Squirrels got you pretty good, eh?

        1. Yup.

      2. How’d you pull off that many multiple posts? I find when I’m calm and have a zen-tranquility political-posting-wise, I never produce a multiple. However when I excitable and agitated (“take THAT, you political opponent scum”) sometime a extra click slips in at the microsecond of posting.

        A while back I asked (rhetorically) why the software couldn’t be written to prevent it. But that was on a more Libertarian thread and all I got was people telling me to “Learn how to Code”.

        Children these days have all their little pet phrases…….

  9. Apparently “Everything You Wanted to Know about Anti-BDS Laws” does not include actually decoding the abbreviation “BDS.” I had to research it. It’s Boycott, Disinvestment, and Sanction.

  10. Is there a permissible way for me to object to an Israeli government that steals land, crops and water from others, and collectively punishes millions of humans by incarceration, without actually being an anti-Semite? My Jewish friends and I are puzzled.

    Is it like the NFL protests, where protest will be allowed if it is done in a locker room outside of public view?

    1. You really should rethink the “some of my best friends are Jewish” thing next time you write about this, it doesn’t help.

      1. What about the, ‘I and my synagog, and wife (also jewish), and our fundraising groups are also part of the BDS movement?’ Its just so weird to be called anti-Semitic with a mezuzah hanging on my doors, and going to temple…

        Or are we anti-Semitic and don’t know about it? Its just so confusing to be called anti-Semitic for being opposed to a new holocaust perpetuated by Israel… Or is it possible to object to the actions of a government without thinking the citizens of the country are evil? I mean I also have South African friends who were opposed to apartheid, ut I have no objection to the sanctions against S. Africa.

        1. Yes, I too think Martin Luther King was a mass murderer. But I am black – you can trust me on this, since I am completely anonymous – so I am not racist.

          1. N.B. If you couldn’t tell that was satire ? among other things, I am the opposite of anonymous ? you are too dumb to be allowed out of your home without a guardian.

        2. Stumble, nice try, but (a) you don’t know how to spell synagogue; (b) you either use synagogue or temple, not both; and (c) virtually no actual Jew would be so daft as to call anything Israel is doing a “new holocaust.” But thanks for playing.

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  12. I’m pretty pro-Israel. However, you have to admit that there’s a >0 risk that Israeli security software will also Israel to spy on entities that use it. Israel has a powerful intelligence arm and they don’t hesitate to spy on their friends.

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