Does Judge Robert Pitman's Opinion Enjoining Texas's anti-BDS Law Stand Up to Scrutiny?

Short answer: no, not even close

|The Volokh Conspiracy |

Last Thursday, federal district judge Robert Pitman released a lengthy opinion enjoining on First Amendment grounds a Texas law that requires state contractors to certify that they don't boycott Israel-related products. The opinion is a mess. I'm not going to point out all of the problems it has, but instead will note the two most serious.

First, the opinion misstates the holding of NAACP v. Claiborne Hardware as "recognizing that the First Amendment protects political boycotts." As Eugene V. has explained on this blog, the case actually holds that there is a First Amendment right to advocate economic boycotts, not engage in them. If there were a First Amendment right to boycott for political reasons, then anyone politically opposed to integration, gay rights, and so on would have a First Amendment right to "boycott" minority groups protected by civil rights laws. That's in fact the implication of Judge Pitman's opinion, and it's hard to believe he means it. It's even harder to believe the Supreme Court would endorse his opinion given this implication.

Second, Judge Pitman botches his discussion of a key precedent, Rumsfeld v.  FAIR. In that case, the Court held that the law school plaintiffs had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters.

Pitman's attempt to distinguish FAIR comes down to the fact that the Court never used the word "boycott" in the opinion:

Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs' conduct as a boycott: the word "boycott" appears nowhere in the opinion, the decision to withhold patronage is no implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.

The reason Claiborne is not discussed is FAIR is because, again, Claiborne deals only with the right to advocate a boycott (speech), not to engage in one (economic action) and it's therefore irrelevant. It's true that the word "boycott" does not appear in FAIR, but it's also true that (a) what the law school plaintiffs were doing was clearly within the definition of the word boycott; and (b) the law school plaintiffs, in their Supreme Court brief, themselves described what they were doing as a boycott. Here's the relevant excerpt from the brief.

Moreover, the Association of American Law Schools, acting as an amicus and representing the interests of American law school membership, also described the actions of the law schools as a "boycott."

So the notion that FAIR "is not about boycotts at all" is both contrary to the ordinary meaning of the word "boycott" and contrary to the way the case was presented to the Supreme Court by the law schools challenging the federal law at issue

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  1. “If there were a First Amendment right to boycott for political reasons, then anyone politically opposed to integration, gay rights, and so on would have a First Amendment right to “boycott” minority groups protected by civil rights laws. ”

    So, let’s push that line. Maybe the absurdity of subjecting private individuals to non-discrimination law can finally be overturned.

    Ok, not going to happen, but I can dream.

    1. It would be fun. I wonder how far this tendency to eliminate individual rights will go. I wonder if those who find ways to chip away at individual rights ever think of the consequences.

      1. You’re misunderstanding (or intentionally misusing) the phrase “individual rights.” You have certain “individual rights” vis-à-vis the government, but not vis-à-vis private persons or entities.

        1. Really. I did not know that I could punch your smarmy little face and not violate your individual rights.

          1. But of course you probably consider people as owned by the government, thus punching your smarmy little face would be violating the government’s individual right to have undamaged property.

            Cool story, bro.

            1. This fucking loser just cool story, broed himself.

  2. If there were a First Amendment right to boycott for political reasons, then anyone politically opposed to integration, gay rights, and so on would have a First Amendment right to “boycott” minority groups protected by civil rights laws.

    I find it insulting equating gay equality in the United States with dubious laws pretending to protect a country 7,168 miles away from Texas because Jesus (lets stop pretending that these so call anti-boycott laws is based on any rational basis).

    One has direct real impact on the lives in this country. While the other does not.

    1. “I find it insulting equating gay equality in the United States with dubious laws pretending to protect a country 7,168 miles away from Texas…”

      You find it insulting? Oh, well jeez. I guess Pitman’s opinion is correct then. It’s unfortunate that you weren’t able to inform Bernstein about your feelings before he wrote this post.

    2. Both apply to Americans right here right now. Does that bother you?

      1. Which American is affected by a boycott of Israel?

      2. American citizens living in Israel for one. Student citizens seeking education abroad opportunity cities in Israel for another.

        I could go on, but knowing you you ignored the first w examples already.

    3. You strongly don’t approve of boycotts of same-sex couples. You are apparently indifferent to boycotts of Israel. I’m sure many people share your instincts, maybe even a majority of the the Supreme Court. You know what that means for the question of whether economic boycotts of minority groups are protected by the first amendment if economic boycotts in general are? Absolutely nothing. If there’s any bedrock principle in free speech law, it’s that whether courts or anyone else approve or disapprove of content of the speech is irrelevant to its protection. (Caveat: one can imagine a court holding that anti-civil-rights boycotts are protected speech, but the compelling government interest in these laws overcomes that protection. But that’s a different argument than the obviously incorrect argument that the First Amendment applies to boycotts we approve of or are indifferent to, but not to ones we dislike.)
      The additional implication here is that if you find the notion of “political” boycotts of minorities “offensive” and don’t want them to be receiving First Amendment protection, you should be rooting for the plaintiffs in the Texas case to lose.
      (Also, fwiw, the primary beneficiaries of the anti-BDS law in practice won’t be “Israel” (given that few Texas contractors do business directly with the government of Israel), but Americans who have business or other ties to Israel, who are also subject to boycott, as when professors refuse to write letters for students who want to study in Israel–though the professors themselves are not covered by this legislation, which applies to contractors and not employees).

      1. Could you explain more about what it means for a professor to write a letter for a student who wants to study in Israel? If a student wants to study in Israel, but needs a letter to do so, why would it seek a letter from an anti-Israeli professor? Surely you agree that the 1A cannot require a professor to write the letter? (And would the letter help the student’s chances with the Israeli school? Wouldn’t you want a letter from somebody who didn’t hate Israel?)

        1. Come on, do you not understand how letters of recommendation work? The topic of the letter is the student.

          1. If the recipient of the letter is an Israeli university, why would the student want that letter written by an anti-Israel professor in the first place?

            1. Student: “Would you write a letter of recommendation for me to study abroad”
              Teacher: “Sure, you’re a great student. I’ll write a glowing recommendation”
              Student: “Thanks! I’m going to study in Tel Aviv”
              Teacher: “I take it back. I’m Antisemitic and won’t support a student studying in a Jewish majority country. No letter of recommendation for you”.

            2. Nioj, do you need a picture made for you? The LoR deals with the student , not the recipient of the letter. Try logic for once.

        2. “Surely you agree that the 1A cannot require a professor to write the letter?”

          I’m not sure what this means, but are you suggesting that states can’t require public school professors to write recommendation letters for students as a condition of employment? Schools can, and should, require professors to provide honest evaluations of a student’s work on an equal basis without regard to whether or not the professor approves of other aspects of the student’s conduct.

          1. It would surprise me if public schools can require professors to write recommendation letters for students as a condition of employment.

            1. Have you bothered to read a standard teaching contract?

        3. When I was an undergraduate I had no idea what any of my professors thought about Israel.

          If I had wanted to do graduate study in Israel and I asked a math professor to write a recommendation I would not have been at all happy if he refused because he wanted me to study somewhere other than Israel. I think h that him trying to impose his political beliefs on where I study next should absolutely be grounds for termination.

    4. I find it insulting that the intelligensia insists that a man sodomizing another man is a marriage.

      1. I haven’t been to any gay weddings yet, but is that really part of the ceremony?

        1. No, but sodomy is the essence of same-sex male relationships.

          1. “No, but sodomy is the essence of same-sex male relationships.”

            As opposed to opposite sex relationships, which only involve sodomy before marriage.

            1. That’s fortification you mean, which may or may not include sodomy.

              1. No, fortification is after marriage.

          2. “Poor is the man whose pleasures depend on the permission of another.”

        2. Only some ceremonies. But those are the good gay weddings.

    5. First they came for the socialists, and I did not speak out. Because I was not a socialist
      Then they came for the trade unionists, and I did not speak out Because I was not a trade unionist.
      Then they came for the Jews, and I did not speak out. Because I was not a Jew.
      Then they came for me. And there was no one left to speak out.

    6. Can you explain the relevance of this to the First Amendment?

      Are you under the impression that there is an exception in the First Amendment for speech that “has direct real impact on the lives in this country”?

  3. I think there is more to be said for the judge’s opinion than this, even though I ultimately agree with Professor Bernstein here.

    The difficulty is that if a boycott is simply a negative form of discrimination, by the same logic preference is simply a positive form of discrimination.

    Yet courts seem to find no trouble analytically distinguishing the two. Preference is something good people do, discrimination is something bad people do. How could the two possibly be the same?

    By the same analysis, boycotts are something done to bad people. But discrimination is something that’s only done to good people. So the analytical difference is essentially the same.

    And with the courts there to tell us who the good people and who the bad people are, there should no risk of confusing them.

    1. It’s a dirty secret that everybody discriminates, all the time, and that discrimination is a human necessity for not only prosperity, but mere survival.

    2. That’s overthinking it. A refusal to deal with, say, a same-sex couple can be deemed “discriminating” against same-sex couples, but it could just as easily be deemed “boycotting” same-sex couples. I’ve seen some suggest that there is a constitutional difference between refusing to buy from someone and refusing to sell to them, but I’m not at all clear on where that difference comes from.

      1. I think the difference comes from there being many more people buying than selling, so the blowback is less for infringing the rights of sellers. And nothing any more principled than that.

      2. I’m also not at all clear as to why business and personal should be distinguished. If it can be made illegal to not bake a cake for a same sex “couple,” why can’t it be illegal to refuse to date someone of the same sex?

        1. Like I said above: Relatively few people baking cakes, almost everybody dating. They would make it illegal to discriminate in dating, too, if they thought they could get away with it. But trying it would piss off so many people they might literally, not figuratively, end up hanging from a street light.

          1. Exactly. None of the lines they draw with respect to their intrusions on personal freedom are based on any principles.

  4. I could have told you the opinion would be a mess by virtue of the fact that the judge was appointed by Hussein.

  5. “…the case actually holds that there is a First Amendment right to advocate economic boycotts, not engage in them.”

    If the state of Texas requires me to declare that I am not engaging in a boycott of Israel in order to contract for state work, are they infringing my First Amendment right to advocate a boycott? As I’ve commented before, company A is boycotting Israel, company B isn’t but just happens to not be doing any business with Israel. No difference in behavior between the two companies, just different advocacy.

    Ultimately, what is the difference between engaging in and advocating a boycott? Must a company actually be doing business with Israel to prove they aren’t boycotting Israel?

    1. What’s the difference between stating that people should integrate their restaurants, or do business with same-sex couples, and actually refusing to serve black people in one’s restaurant, or to allow a same-sex couple into your store? One is constitutionally protected speech, the other is constitutionally unprotected (except at a very minimal level) economic action.

      1. The restaurant owner can state an opinion or advocate anything regarding public accommodation law, but she cannot physically turn away black people, or same-sex couples. What is the comparable situation with boycotts? The company contracting with Texas can’t decide not to do business with any Israeli companies, for any reason? What if the Israeli company wasn’t the lowest bidder, or had cheated or done substandard work in the past? Surely there are clear distinctions to be made here between public accommodation situations and boycotts.
        Once again, the only difference between a company boycotting Israel and a company that isn’t doing any business with Israel for non-boycott reasons is in what they believe, not in their behavior. How can Texas legally treat those two companies differently?

        1. It’s the difference between the bar named “Jimbo hangs coloreds” (and that has an appropriately matching, realistically looking sign hanging from the tree out front), across the street from a Nathan Bedford Forrest monument, and between the local KKK headquarters and a cupcake shop in Atlanta on one hand, and that very cupcake shop on the other. Neither will ever serve black people, but only one is engaging in a “boycott,” with the other merely losing opportunity for business.

          The intent is what matters: are you open to all comers on a non-discriminatory basis, or not? Brett wants businesses to be able to be open and still discriminate (and based on his prior comments as I understood them, so that he can disassociate himself from them), and Texas is saying, “you have to certify that you’re not discriminating in this manner.”

          You’re right that most contractors won’t have business with Israel for lack of opportunity, but Texas is saying that if you have such opportunity and would otherwise take it, you can’t decline because of the identity of the other contracting party.

          1. “…Texas is saying that if you have such opportunity and would otherwise take it, you can’t decline because of the identity of the other contracting party.”
            Is that what Texas is saying? Is it okay with Texas if you boycott Iran, or Niger, or France? Or does the law single out Israel?

            1. Israel is the only country subject to a worldwide antisemitic boycott campaign. I would expect that if Iran or France was subject to a worldwide antisemitic boycott campaign, they would have been included, too.

              1. Is a perceived anti Semitic aspect of BDS a required justification for the Texas law? The governor’s statements at the time the law was passed mentioned “anti-Israel” policies but not “anti-Jew” policies. In my own case I would support BDS actions due for Israel’s activities in the West Bank but not through anti-Jewish sentiment. So I find the assumption of anti Semitism problematic.

            2. Israel is the only country protected by this law. Is that relevant?

        2. Pretty easily. Same way the government can tell if a company, business, or person is discriminating against African Americans.

          Let’s say the company is in charge of selling food stuffs. They sell a variety of food. Sabra says “sell our hummus.” And the company says “No”. What’s their reason? If they say “We don’t do business with Israelis,” then, it a boycott. If they say “We have a cheaper vendor”, then it’s not. Unless the vendor isn’t cheaper. Or if it becomes a certain pattern of behavior.

          1. I’m not a lawyer, armchair or otherwise, but that is not my understanding of how the government determines whether a company is discriminating against African Americans.

            1. Well, African Americans aren’t a food.

              But if a company is silly enough to say “we don’t serve African Americans”…it’s a pretty open and shut case for the government on discrimination.

        3. What is the comparable situation with boycotts? The company contracting with Texas can’t decide not to do business with any Israeli companies, for any reason? What if the Israeli company wasn’t the lowest bidder, or had cheated or done substandard work in the past? Surely there are clear distinctions to be made here between public accommodation situations and boycotts.

          Why are people playing dumb here? Of course the company can decide not to do business with an Israeli company for business reasons such as the ones you describe, in exactly the same way that a company can refuse to hire a black person for reasons unrelated to the person’s race, such as lack of skills or dishonesty in the application process.

          Is the only difference between a company boycotting blacks and a company that happens not to hire blacks for non-racist reasons what they believe? Can Texas legally treat those two companies differently?

          1. Company hiring decisions and public accommodations are two very different areas. I was objecting to the comparison to public accommodation laws. Laws against discrimination in hiring seem to me to be a much better analogy. I’ll have to think about that one.

      2. “What’s the difference between stating that people should integrate their restaurants, or do business with same-sex couples, and actually refusing to serve black people in one’s restaurant, or to allow a same-sex couple into your store?”

        Because the former requires me to kick a black person out of my restaurant, whereas the latter simply requires me to not hire an Israeli company. It has to do with economic inactivity you see. There’s broccoli involved.

  6. It’s a bit of an odd decision. In general, I find Texas’s position to be the accurate one. In the course of their business, the business can’t boycott Israel. The person, in their private capacity can boycott Israel. I’m unsure why the court didn’t take this position, as advocated by the state of Texas.

    I.E. the radio employee couldn’t say “Sabra, I won’t run your ads, because I’m boycotting Israel”. That’s in the course of the business. But he could personally not buy Sabra products for himself. Or, an IT professional could refuse to buy HP products for himself. But he couldn’t boycott then in his business capacity

  7. “If there were a First Amendment right to boycott for political reasons, then anyone politically opposed to integration, gay rights, and so on would have a First Amendment right to “boycott” minority groups protected by civil rights laws.”

    This doesn’t necessarily follow. First, it might be that there is a First Amendment right to boycott for political reasons, but that anti-discrimination laws prohibiting discrimination by businesses against gay or black people survive strict scrutiny, whereas an anti-BDS law does not. Second, the 1A was modified by the 14A, and so it is conceivable that some sorts of anti-discrimination laws, at least at the federal level, receive more 1A scrutiny than others. An anti-discrimination law protecting a foreign country might not be as critical as an anti-discrimination law targeted at American citizens (mostly) of a particular class contemplated by the 14A (i.e., black people). We already have different tiers of scrutiny under current jurisprudence depending on, e.g., whether the discriminated trait is sufficiently inherent. Being an Israeli business isn’t inherent at all; that’s a decision businesses make.

    1. Having said all that, my view is that I don’t think there is sufficient evidence that the 1A was intended to protect boycotts at all, and even if there was, I’d narrowly interpret the 14A as not extending that protection to states anyway, so the Texas law is probably constitutional. Stupid, but constitutional.

    2. So, why should gay individuals or companies have more protection (strict scrutiny) than Israelis or Israeli companies? From a constitutional perspective.

      1. I don’t think the Constitution provides more protection to gay people than Israeli companies. My view of the 14A is significantly narrower than current jurisprudence.

        Setting aside the constitutional argument for a moment, the law shouldn’t discriminate against gay people because there’s no moral or civic reason to treat gay people differently from, say, straight people, generally. (Maybe there are some narrow exceptions to this.) As part of its national security, the government does often discriminate against other countries, and enacts laws that have the effect of discriminating against the individuals and companies of other nations. Would I discriminate against an individual because they were born in Israel? Obviously not, because they have no control over that. But I would discriminate against companies from countries that I disapprove of, if I thought it would have the effect of moderating the behavior of the country. A foreign company has made a decision to incorporate/form in that country. I can criticize that decision.

        (Personally, I would not refuse to do business with an Israeli company.)

        1. The major mistake you’re making is, BDS is not about “Israel” as a country so much as it is about “The Jews” and the inherent antisemitism in BDS.

          The arguments BDS’s supporters make curiously only apply to Israel…the only majority Jewish country on the planet. They don’t seem to want to boycott Turkey for it’s occupation of Cyprus, Morocco for it’s occupation of Western Sahara, or China for its occupation of Tibet. But Israel, that’s a different story.

          It reminds me of a quote by Harvard dean Lowell on defending Jewish quotas. When asked why there should be a quota on Jews, Lowell replied, “Jews cheat.” When reminded that Christians cheat too, Lowell responded, “You’re changing the subject. We are talking about Jews now.”

  8. “Pitman’s attempt to distinguish FAIR comes down to the fact that the Court never used the word “boycott” in the opinion…”

    FAIR doesn’t control, anyway. That had to do with whether conditions on federal spending amounted to compelled speech against the schools. There was no need to discuss whether boycotts were protected (one way or the other) because government spending wasn’t compelled speech in the first place.

    1. That’s not a correct reading of FAIR, Eugene explains here: https://reason.com/2018/11/19/a-reminder-about-rumsfeld-v-fair/

      1. He’s quoting Section III. There are two reasons why “the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement”. The first is judicial deference to army-making, which doesn’t apply to the Texas statute. The second is that since the Solomon Amendment didn’t require the professors to speak at all, it couldn’t compel their speech, and thus it can’t be the case that the condition was unconstitutional. That’s Section III.A.1.

  9. Another one of the conspirators brought up the California requirement that state contractors must disclose any relationships with the NRA.

    Do you think these two cases are on opposite sides of the advocate/engage divide, or do you think both are 1st Amendment violations?

    1. The NRA is being targeted for its speech.

  10. I think, in fairness, Claiborne Hardware provides more support for the District Court’s position than Professor Bernstein acknowledged.

    1. The Opinion of the Court characterized what the NAACP as a boycott. Not speech related to a boycott. A boycott.

    2. Similarly it repeatedly said that the boycott was constitutionally protected. -and in doing so, referred to conduct elements of the boycott, not just speech elements. Example quotes”

    “Each of these elements of the boycott is a form of speech or conduct that is ordinarily protected by the 1st or 14th Amendments.”

    “Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment.”

    The Supreme Court May have decided Claiborne Hardware incorrectly. Some of what it said might be dicta. But nonetheless, characterizing a boycott as something protected by the First Amendment, and a distinct activity from “discrimination,” seems a plausible reading of what Claiborne Hardware actually said. The Supreme Court referred to “the boycott,” not just speech about the boycott, and moreover it specifically said that elements of the conduct of the boycott, not just speech and association alone, was included in the zone of protected activity.

  11. “Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment.” You left out the next few paragraphs, in which the Court references picketing, speech/persuasion, peaceful pamphleteering, ultimately summarized as “established [First Amendment] elements of speech, assembly, association, and petition.” The Court said nothing about the act of actually refusing to buy. The Court does use the word “boycott” loosely, but every specific example they give is about trying to persuade people to boycott, not any economic act.

    1. The difficulty with this distinction is the rule that the First Amendment prohibits direct solicitation (as distinct from abstract advocacy) to commit a crime, and protects solicitation to commit a legal activity.

      What the NAACP did went well beyond mere abstract advocacy of a boycott. Its organization of a specific boycott of specific individuals at a specific time and place were clearly direct solicitation.

      So if you the state could criminalize boycotts, ordinary First Amendment doctrine would say it could criminalize solicitation to commit a boycott.

      If this had been the White Citizens Council urging businesses not to admit black people and keeping tabs on businesses that permitted them, the First Amendment clearly wouldn’t have protected its activities.

      So the difficulty here is that given the Supreme Court’s decision that solicitation to commit a boycott – again, not mere abstract advocacy, but direct solicitation – is protected by the First Amendment, it seems hard to avoid the conclusion that the Supreme Court regards a “boycott” as such is protected by the First Amendment, and hence as something distinct from “discrimination.”

      This is a review of the existing case law, not theory about how the decisions are supposed to go. But that’s the perspective a lower court judge is supposed to take.

      If a boycott and discrimination are the same (in the Supreme Court’s eyes, independent of how you or I see it), how does one explain away the solicitation doctrine? The distinction you made above, between doing the activity and soliciting it, isn’t one that’s consistent with ordinary First Amendment doctrine.

      Or are you saying you think what the NAACP did in Claiborne Hardware wasn’t solicitation, was mere abstract advocacy? That doesn’t seem at all consistent with the stated fact and what “solicitation” ordinarily means in constitutional law. This was, in the specificity and particularity of its direction and the degree of organization and management involved, well beyond abstract advocacy of even the sort found in Paladin Publications, a borderline case. If this is advocacy, no lynch mob organizer need fear prosecution for advocating lynching a particular person at a particular time and place.

  12. How about: there is “a First Amendment right to “boycott” minority groups”, but the state has a compelling interest in preventing that; the state doesn’t have a compelling interest in preventing boycotts of foreign countries.

    1. There’s a compelling interest in ensuring that two mentally ill men can get a “wedding” cake for their “marriage?”

  13. Well, as long as they are all consenting adults, I don’t see the need for a law against BDSM.

  14. Seriously, how intellectually weak is this?

    A store owner can aggressively broadcast their personal opinion about Israel (even if it’s irrationally negative), but can’t commit his/her/hirs company to not buy Israeli-made items/services.

  15. Advocating boycotts is not illegal. Boycotts are.

    Advocating gun rights is not illegal. Government coercing you into not doing that is.

  16. “Claiborne deals only with the right to advocate a boycott (speech), not to engage in one (economic action)” — as Judge Pitman notes, “decision to “withhold patronage”—a key activity of a boycott—was protected by the First Amendment, Mississippi could not “award
    compensation for the consequences of [this] nonviolent, protected activity.” Id. There would be no basis for this damages limitation if the decision to withhold patronage were not so protected”.

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