Why the Arkansas Law Aimed at Boycotts of Israel Is Generally Constitutional

Here's an amicus brief so arguing, signed by Profs. Michael C. Dorf (Cornell) and Andrew M. Koppelman (Northwestern) -- two leading liberal First Amendment scholars -- and me.

|The Volokh Conspiracy |

The statute:

(a) Except as provided under subsection (b) of this section, a public entity shall not:

(1) Enter into a contract with a company to acquire or dispose of services, supplies, information technology, or construction unless the contract includes a written certification that the person or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel; or

(2) Engage in boycotts of Israel.

(b) This section does not apply to:

(1) A company that fails to meet the requirements under subdivision (a)(1) of this section but offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business; or

(2) Contracts with a total potential value of less than one thousand dollars ($1,000).

And here's our brief (PDF) (you can also read a brief from other leading First Amendment scholars on the other side, as well as still more briefs on that side, including ones from the Foundation for Individual Rights in Education, the Institute for Free Speech, and the Reporters Committee for Freedom of the Press, groups with which I usually agree):

Summary of Argument

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. FAIR, 547 U.S. 47 (2006), and it is the foundation of the wide range of antidiscrimination laws, public accommodation laws, and common carrier laws throughout the nation.

Thus, for instance:

  • A limousine driver cannot refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
  • A store cannot refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
  • An employer in a jurisdiction that bans political affiliation discrimination cannot refuse to hire Democrats, even if it describes such discrimination as a boycott.
  • An employer that is required to hire employees regardless of union membership cannot refuse to hire union members on the grounds that it is boycotting the union.
  • A cab driver who is required to serve all passengers cannot refuse to take people who are visibly carrying Israeli merchandise.
  • Of course all these people would have every right to speak out against same-sex weddings, Catholicism, the Democratic Party, unions, and Israel. That would be speech, which is indeed protected by the First Amendment.

But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment. And though people might have the First Amendment right to discriminate (or boycott) in some unusual circumstances—for instance when they refuse to participate in distributing or creating speech they disapprove of—that is a basis for a narrow as-applied challenge, not a facial one. For this reason, Ark. Code Ann. § 25-1-503 is constitutional.

I. Refusals to deal are generally not protected by the First Amendment

In Rumsfeld, the Supreme Court rejected the argument that a law school had a First Amendment right to refuse to allow military recruiters on its property—which is to say, the Court rejected the argument that law schools could engage in a limited boycott of such recruiters.

Such a refusal to allow military recruiters, the Court held, "is not inherently expressive." 547 U.S. at 64. Law schools' "treating military recruiters differently from other recruiters" was "expressive only because the law schools accompanied their conduct with speech explaining it." Id. at 66. "The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it." Id. Because of that, Congress could restrict such discrimination against military recruiters without violating the First Amendment. Id.

"[I]f an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes," id., that announcement offers no basis for applying First Amendment scrutiny to the nonpayment of taxes. Likewise, if a university announces that it is expressing disapproval of the military's Don't-Ask-Don't-Tell policy by excluding the military from on-campus recruiting, that announcement offers no basis for applying First Amendment scrutiny to this exclusion. Id.

The same applies to boycotts of Israel: An observer who sees a company dealing with a non-Israeli business, and not with an Israeli business, can only perceive a political message when the company accompanies its conduct with speech explaining it. Because of that, Arkansas may restrict such discrimination against Israeli businesses without violating the First Amendment.

This simply reflects a well-established principle: The First Amendment does not generally protect liberty of contract, whether or not one's choices about whom to deal with are political. "Boycott" is just another term for refusal to contract, at least when that is part of some organized movement. There are also "buycotts," which are deliberate choices to contract with particular entities, and which are likewise not protected by the First Amendment.[1] But using such terms to refer to one's commercial choices does not create a First Amendment right to contract, or not to contract. People equally lack a First Amendment right, for instance,

  • to illegally refuse to hire lawful permanent residents,[2] even if such a refusal is aimed at sending an anti-immigrant message;
  • to illegally hire aliens who lack work authorization, even if such a refusal is aimed at sending a pro-open-borders message;
  • to do business with North Korean entities (if a law forbids that), even if such dealing is aimed at sending what they see as a pro-peace message;
  • to refuse to do business with Israeli entities (if a law forbids that), even if such a refusal is aimed at sending a pro-Palestinian-rights message.

Of course, boycotts usually involve speech—people urging others to join the boycott or organizing in groups that promote the boycott—as well as conduct. Like other advocacy, advocacy of boycotts is generally constitutionally protected: NAACP v. Claiborne Hardware Co.made that clear, in noting that "peaceful picketing," "marches," "urg­[ing others] to join the common cause," "support[ing the boycott] by speeches," "threats of social ostracism," and gathering and publishing the names of those who refuse to join were all "safeguarded by the First Amendment." 458 U.S. 886, 907, 909, 910, 933 (1982).

But Claiborne Hardware had no occasion to decide whether a person's not dealing with someone based on that someone's race was itself protected by the First Amendment, because it was clear that Mississippi law did not prohibit such private choices not to deal. Under Mississippi law, whites could generally refuse to deal with blacks, and blacks could refuse to deal with whites. Nor was the boycott banned by general prohibitions on "concerted refusal to deal," "secondary boycotts," or "restraint[s] of trade." Id. at 891 n.7, 894, 915.

Indeed, Claiborne Hardware expressly reserved the question whether a boycott "designed to secure aims that are themselves prohibited by a valid state law" is constitutionally protected. Id. at 915 n.49. It follows that the question whether a boycott that involved refusals to deal that were themselves prohibited by a valid state law—a law that targeted conduct rather than speech—was also not resolved by Claiborne Hardware. And in Rumsfeld, the Court did resolve the issue: a boycott by universities of military recruiters could be outlawed outright, 547 U.S. at 60, and certainly could be penalized by withdrawal of government funds as well, id.

The holding of Claiborne is thus consistent with the principle set forth just six years before in Runyon v. McCrary: Though people and institutions have a right to advocate for discrimination—to "promote the belief that racial segregation is desirable"—"it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle." 427 U.S. 160, 176 (1976). Likewise, though people have a right to urge a boycott of white-owned stores, as in Claiborne, it does not follow that the practice of refusing to deal with an entity based on the owners' race (whether black or white) is also protected by the same principle. And though people have an indubitable right to urge a boycott of Israeli companies,[3] it does not follow that the practice of refusing to deal with such companies based on the owners' nationality is also protected by the same principle.

We see the same in International Longshoremen's Ass'n v. Allied International, Inc., 456 U.S. 212 (1982), where union members engaged in a purely politically motivated boycott of cargoes shipped from the USSR (engaged in as a protest of the invasion of Afghanistan). The Court noted that even outright speech—secondary picketing—in support of refusals to deal might sometimes be properly restricted notwithstanding the First Amendment (a controversial position, but one the Court had settled on in earlier cases). Id. at 226. And, the Court noted, if even picketing supporting a boycott could be restricted, "[i]t would seem even clearer that conduct designed not to communicate but to coerce" (there, a refusal to unload ships) "merits still less consideration under the First Amendment." Id. Of course, the refusal to unload ships was obviously a part of a broader plan designed to communicate. But the refusal to deal was itself not treated as communication entitled to First Amendment protection.

The Court also added that, "There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others." Id. That too fits perfectly with the Arkansas law in this case, which leaves opponents of Israel with many ways to express their opposition to Israel without engaging in discriminatory refusals to deal with Israeli companies.

To be sure, FTC v. Superior Court Trial Lawyers Ass'n, while holding that the First Amendment did not protect "a group of lawyers [who] agreed not to represent indigent criminal defendants … until the … government increased the lawyers' compensation," 493 U.S. 411, 414 (1990), distinguished Claiborne on the grounds that the lawyers' boycott was primarily economically motivated while the Claiborne boycott was political. And there is language in Claiborne suggesting (but not holding) that a political boycott, such as "an organized refusal to ride on [city] buses," might be constitutionally protected. 458 U.S. at 914 & n.48; it is thus possible to read Claiborne as saying that boycotts are inherently expressive.

But the far better reading of that case, and the one most consistent with the other precedents, is that many but not all elements of political boycotts are expressive. The Claiborne Court says that the political "boycott clearly involved constitutionally protected activity," 458 U.S. at 911, and then identifies those elements as "speech, assembly, association, and petition," id., notably not including commercial dealing or nondealing in the list. The Court in Superior Court Trial Lawyers Ass'n likewise did not hold that the refusal to deal would itself be protected had it been politically motivated. And in Rumsfeld, the Court expressly rejected any such position.

Indeed, much of the reasoning in Superior Court Trial Lawyers Ass'n is squarely on point here. "Every concerted refusal to do business with a potential customer or supplier has an expressive component," the Court noted. Id. at 431. Yet that does not itself make refusals to deal constitutionally protected. Id. at 430. Nor does the publicity generated by the boycott: "[T]o the extent that the boycott is newsworthy, it will facilitate the expression of the boycotters' ideas. But this level of expression is not an element of the boycott. Publicity may be generated by any other activity that is sufficiently newsworthy." Id. at 431.

The same applies to the boycotting behavior to which Arkansas law applies: The concerted refusal to do business with Israeli companies may have a political motivation, may help spread political ideas, and may even be understood as political by people who are told about the boycotters' motivations. But this does not make such speech protected.

And to the extent that Superior Court Trial Lawyers Ass'n might have been seen as implying a different result for purely un-self-interested boycotts, Rumsfeld rebuts any such reading. "[A] group's effort to use market power to coerce the government through economic means may subject the participants to antitrust liability," even Justice Brennan's Superior Court Trial Lawyers Ass'n dissent acknowledged, id. at 438 (Brennan, J., dissenting). A university's effort to use control over its property to coerce the government into changing its policies may subject the university to the loss of funds. Rumsfeld, 457 U.S. at 60. Likewise, an effort to use economic power to coerce a foreign government through economic means may subject the participants to loss of state government contracts.

Of course, different laws banning refusals to deal operate differently:

  1. Some categorically require people to do business with all eligible people or organizations—common carrier obligations, such as those imposed on taxicabs, are one example.[4]
  2. Some ban discrimination based on a particular trait that has been the basis of massive and often debilitating discrimination, such as race.
  3. Some ban discrimination for much less pressing reasons, for instance bans on discrimination based on marital status, "personal appearance," "matriculation," "political affiliation," "source of income," or "place of residence or business."[5]
  4. Some ban discrimination only against particular groups or organizations, such as bans on discrimination against military recruiters, Israeli companies, military members,[6] or permanent resident aliens.[7] While such selectivity might in rare situations violate the Equal Protection Clause (for instance, if a law banned discrimination against Hispanics but not against Asians), it does not violate the First Amendment.
  5. Some categorically ban discrimination, and some ban discrimination only in government funding.[8]

But these laws all have an important feature in common: They ban refusal to deal, which is to say the conduct of not doing business with some person or organization, rather than banning speech. Because of this, none of them is generally viewed as subject to heightened scrutiny: Antidiscrimination laws, for instance, are constitutional precisely because they do not inherently burden First Amendment rights, not because they burden First Amendment rights but pass strict scrutiny. (Indeed, many applications of antidiscrimination laws might well not pass strict scrutiny; consider, for instance, the bans on public accommodation discrimination based on marital status or political affiliation.)

When the Court concluded that, "There is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union," Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (citing Norwood v. Harrison, 413 U.S. 455, 470 (1973); Runyon, 427 U.S. 160; and Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945)), it did so because such discrimination is simply not treated as symbolic expression for First Amendment purposes—not because bans on such discrimination pass heightened scrutiny. The same applies to discriminating in the selection of those with whom one enters into other business arrangements.

Of course, the Arkansas anti-BDS statute may well have been motivated not just by purely economic considerations, but also by the Legislature's desire to send a message that a certain basis for refusing to deal is improper. But that too is a similarity between this statute and many of the other laws mentioned above: Those laws also aim to send a message about equality and fairness. The important point is that they send a message by banning conduct—refusal to do business—not by targeting constitutionally protected speech; the same is true of the anti-BDS statute.[9]

II. Some refusals to deal may indeed be protected by the First Amendment, but those are rare exceptions that call for as-applied exemptions from the statute

To be sure, some refusal to deal may indeed be protected by the First Amendment, when the underlying transaction itself involves First-Amendment-protected activity. For instance:

  • A church's refusal to hire someone as clergy may be categorically protected by the Free Exercise Clause, even if it violates an antidiscrimination statute. See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).
  • A filmmaker's decision to cast actors from a particular group in a particular role may be categorically protected by the Free Speech Clause. See Claybrooks v. ABC, 898 F. Supp. 2d 986, 1000 (M.D. Tenn. 2012).
  • A newspaper's decision not to continue employing reporters who engage in political activity may be categorically protected by the Free Press Clause, even in those states where employers generally may not dismiss employees for their political activity. See Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1133 (Wash. 1997).
  • A photographer's decision not to photograph same-sex weddings—or, for instance, Scientology events—might possibly be protected by the compelled speech doctrine, even if it would otherwise violate a ban on sexual orientation discrimination or religious discrimination in a public accommodation, though the signatories of this brief disagree with each other on that score. But see Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) (rejecting such a claim).
  • A nonprofit organization's decision not to contract with spokespeople whose publicly known sexual orientation or religion would undermine the organization's ability to spread its message may be categorically protected by the Free Speech Clause. See Dale v. Boy Scouts of Am., 530 U.S. 640 (2000) (so holding as to volunteers).

Indeed, the Arkansas Times may well have the right to refuse to, for instance, publish op-eds by Israeli citizens or political advertisements submitted by Israeli companies, see Miami Herald Co. v. Tornillo, 418 U.S. 241 (1974)—though the Arkansas Times has apparently not made any such narrow claim having to do with its First Amendment right to exercise editorial control.

But this simply reflects the reality that a wide range of laws that regulate conduct, and that are constitutional on their face, may sometimes require First Amendment exceptions as applied. The remedy in such situations is to grant as-applied exceptions from the laws, not to invalidate them on their face. "[P]articularly where conduct and not merely speech is involved, … the overbreadth of a statute must not only be real [for the law to be struck down on its face], but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). If the overbreadth is not substantial, "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." Id. at 615-16.

Hosanna-Tabor, after all, did not facially invalidate the Americans with Disabilities Act, even though some applications of the Act violate the First Amendment. The same is true for Claybrooks as to Title VII, and Dale as to New Jersey's ban on discrimination in places of public accommodation. Similarly, Claiborne Hardware did not facially invalidate the tort of interference with business relations, but just held that it could not be applied to constitutionally protected speech. The Sherman Act is likewise generally constitutional, but may not be applied to anticompetitive conduct that takes the form of lobbying or nonfrivolous litigation. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144-45 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 659-61, 670 (1965); Superior Court Trial Lawyers Ass'n, 493 U.S. at 424 (noting that, though the Noerr Court was purporting just to interpret the Sherman Act, it was doing so "in the light of the First Amendment[]").

Similarly, if a government required contractors to pledge that they do not discriminate in employment based on, say, race, religion, sex, sexual orientation, or marital status, that requirement would not be facially unconstitutional—even though some contractors may in rare situations have a First Amendment right to so discriminate (for instance, in choice of clergy). If the Catholic Church, for instance, was otherwise eligible for the contract, it could sign this pledge with a reservation noting that it of course discriminates based on sex, marital status, and religion in choice of clergy. If the government then chose to disqualify the Church because of that reservation, the Church would likely have a strong as-applied challenge. (Indeed, in certain circumstances, the Church could get a declaratory judgment affirming its rights on this score.) But because the pledge would not be substantially overbroad, the as-applied challenge would be the only one available.

Conclusion

Banning discrimination against Israel and Israeli companies—whether in general, or just for government contractors—is a controversial policy. Perhaps it is unwise, especially when applied to small service providers. Perhaps people should be generally free to choose whom they will do business with, unless such choice risks creating a truly pressing social problem.

But such decisions are a matter for the political process, not for courts. So long as a law leaves people free to say what they want, it may generally restrict people's decisions about whom to do business with—which are generally regulable conduct, not constitutionally protected speech.

[1] See, e.g., Anand Ghiridharadas, Boycotts Minus the Pain, N.Y. Times (Oct. 10, 2009), http://www.nytimes.com/2009/10/11/weekinreview/11giridharadas.html ("Political consumption is not new ․… What is new is that boycotting is surrendering to buycotting, the sending of positive, not just negative, signals; and that it is practiced increasingly by mainstream shoppers, not just die-hard activists.").

[2] Title 8 U.S.C.A. § 1324b(a)(1)(B), (3) bans such discrimination.

[3] We agree with the District Court, A 9, that, properly interpreted, the Arkansas statute does not ban such speech; "other actions that are intended to limit commercial relations with Israel," Ark. Code Ann. § 25-1-502(1)(A)(i) refers to commercial conduct such as that listed in the preceding phrases ("refusals to deal" and "terminating business activities"), not to advocacy.

[4] See, e.g., Princeton Taxi Owners' Ass'n v. Mayor & Council of Borough of Princeton, 362 A.2d 42 (N.J. Super. Ct. App. Div. 1976).

[5] See, e.g., D.C. Code § 2-1402.31.

[6] See, e.g., 38 U.S.C.A. § 4311; N.Y. Work Comp. § 125-a; La. Rev. Stat. § 23:331.

[7] 8 U.S.C.A. § 1324b(a)(1)(B), (3).

[8] For examples of the latter, see, e.g., the Solomon Amendment, upheld in Rumsfeld; Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000d to 2000d-4a; Title IX of the Education Amendments of 1972, 20 U.S.C.A. §§ 1681-1688; Equal Employment Opportunity, Exec. Order No. 11246 (Sept. 24, 1965); and the Vietnam-Era Veterans Readjustment Assistance Act, 38 U.S.C.A. § 4212, as implemented by 41 C.F.R. § 60-300.5.

[9] If the statute's purpose were to suppress speech because of its content, that might make it unconstitutional as well. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015). But there is no basis in this record to conclude this: The law appears to be aimed at the conduct of refusals to deal with Israel and Israeli companies, and not at any message expressed by that conduct—indeed, it applies even to people's silent refusals to deal that are unknown to anyone else and thus cannot convey any message.

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  1. I agree that this is a poor fit for the 1st amendment. It’s a pity that, as the only one of the Amendments the judiciary takes really seriously, people routinely try to shoehorn other rights into it.

    “Refusals to deal” are actually more of a 10th/13th amendment issue. Especially where what you’re refusing to sell is your own labor.

  2. “A company that fails to meet the requirements under subdivision (a)(1) of this section but offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business;”

    At least we know how they stand on principles. For 20% they will totally sell out.

    1. The politicians’ principles; the taxpayers’ money.

      How cavalier should they get with it?

  3. This is so stupid.

    How can a public entity know if a business owner is boycotting Israel?

    Say a business owner doesn’t want to do business with Israel so they simply don’t bid on contracts or don’t offer good or services to the Israeli government or Israeli businesses.

    The business owner signs the certificate saying they’re not engaged in boycotting Israel but still actively boycotts Israel as noted above.

    Again, how is the public entity supposed to know this?

    Especially when the business owner acting as a private citizen publically (e.g. social media, etc.), disparages Israel til the cows come home.

    Stupid…

    1. I imagine it’s like so many other government bans — some competitor or unsatisfied customer or disgruntled employee rats them out, possibly after the fact.

      Look at all the gun-related bans — magazines, barrel shrouds, bayonet lugs — no need to go door to door searching. When you arrest them for something else, it’s more charges to pile on to encourage a plea bargain. Pissed-off neighbors can report them. Maybe an off-duty cop seems them at the firing range.

    2. “Again, how is the public entity supposed to know this?”

      A business in all states with a government contract currently has to certify that it is not discriminating based on race, sex etc. [whatever the local nondiscrimination law includes].

      This is no different.

      1. No, it isn’t. Which leads to the question: Why is the ACLU, the leading anti-discrimination crusader, suing the government for refusing to do business with those who engage in a certain type of discrimination? Is it that they approve of that particular type of discrimination? Something about those pesky Israelites…

        1. Because you’ve conflated discrimination by the government with private discrimination. The latter is utterly critical to 1A rights, which is the sort of thing ACLU is worried about.

    3. In many of these cases the same would apply to boycotts of blacks, Catholics, etc.

      For example, one of the people suing is a speech pathologist with an LLC whose only customer is a public school district. Her business will probably never have an opportunity to boycott Israeli businesses or black owned businesses. But to do business with the state she must pledge to do neither.

  4. My only minor quibble is that there may be other constitutional provisions that result in carving out exceptions.

    But I agree with the general principal, that these laws are valid unless a specific exception applies in a particular case. I also agree that unless a First Amendment exception applies based on the specific situation, a decision whether or not to buy, sell, employ, etc. represents conduct, not speech.

    1. If you boycott with flair, can you call it dance and get away with it?

  5. Professor Volokh,

    You seem to be using First Amendment not applying as synonymous with the Freedom of Speech not applying. Has there been litigation in regards to these things under the Freedom of Association? Or since the Court when addressing it said it is needed for Free Speech does that mean the same limitations apply?

    I’m more talking generally rather than for this specific case. I personally think government acting in the market place shouldn’t be bound by the First Amendment anyway. But for antidiscrimination laws and public accommodation laws in general is there a body of case law regarding Freedom of Association.

    1. I think Roberts v. United States Jaycees is still the case that established the boundaries of freedom of association:

      Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses […] choices to enter into and maintain certain intimate human relationships [and] a right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion. […] We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members’ freedom of intimate association and their freedom of expressive association

      1. Right: Such business decisions don’t fall in the category of constitutionally protected intimate association (with a few rare exceptions, such as decisions about choosing roommates). And they only fall in the category of constitutionally protect expressive association if restricting them burdens the claimant’s free speech rights (e.g., as in Boy Scouts v. Dale) — expressive association is an aspect of free speech. That’s why I framed this as an argument about free speech rights.

        Note also that the case we most rely on, Rumsfeld v. FAIR, concludes that universities’ free speech and expressive association rights aren’t burdened by requirements that universities allow military recruiters on their property; likewise here, I think.

  6. How do you square this with the prohibition on working with the NRA that came up in California?

    1. A prohibition on contractors dealing with the NRA is based on the NRA’s viewpoint — the NRA is a speaking organization, and its critics oppose it because of what it says in its advocacy and lobbying.

      A prohibition on federal contractors’ dealing with Israeli businesses (if the federal government wanted to join BDS itself) wouldn’t raise similar First Amendment problems, because that’s based not on the businesses’ viewpoints but on the country in which they are based. (A similar state prohibition might well be invalid on the grounds that it frustrates federal policy, see Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), which is why I’m using a federal example here.)

      Likewise with a prohibition on contractors’ refusing to deal with Israeli businesses — that likewise is not based on the businesses’ or contractors’ speech.

      (The L.A. policy about the NRA required disclosure of contracts with the NRA, and didn’t outright bar contractors from dealing with the NRA; but I agree that such a disclosure requirement is also a burden on First Amendment rights, again because the NRA is targeted because of its speech.)

      1. “its critics oppose it because of what it says in its advocacy and lobbying.”

        Its critics also may oppose it for any number of other reasons, including, for example, it’s choice of tactics.
        Like any partisan topic, there’s a tendency for people to either fall in line (anything they do is OK) or totally oppose the group because of agreement, or lack thereof, with the message. But 100% for and 100% against are not the only two options.

  7. I think your brief is an accurate statement of current law but I’m not fond of it as a statement of what the law should be. Just like the right to free speech requires tolerance of objectionable speech, the right of free association includes tolerance of objectionable associations.

    I don’t like the Westboro Baptists but they are allowed to speak and they are allowed to meet. The corollary is that I have the two-fold right to speak out against them and to not be compelled to repeat their speech. The free association equivalent should be the right to avoid them at all times including in commercial contexts. If I want to refuse to sell them megaphones or posterboards, that should be my right.

    Will that standard be abused by bigots who “boycott” for discriminatory purposes? Yes. And that is a social evil. But it’s an evil that we already tolerate in the context of speech because the alternatives are worse. The right answer to discriminatory boycotts should be the same social shunning that answers most discriminatory speech.

    Could there be exceptions? Probably. And just like the exceptions to the presumption of free speech, they should be scrutinized at the highest level.

    1. I appreciate your argument — but the point of our brief is that, if there’s a right to refuse to deal in this situation, there would be a right to discriminate based on religion, sexual orientation, race, etc. (or at least all such antidiscrimination laws would have to be evaluated under strict scrutiny). Perhaps it would be better if there was such a right to discriminate; but it’s a position that American law has generally rejected for decades (except in the narrow contexts we discuss in Part II).

      1. Conceded. My point (which I may not have expressed very well) was that those antidiscrimination laws should be evaluated under strict scrutiny. And yes, that would probably require reversing a considerable body of current precedent.

        1. Friedrich Nietzsche: “Beware that, when fighting monsters, you yourself do not become a monster… for when you gaze long into the abyss, the abyss gazes also into you.”

          The civil rights community has long embodied that problem, having abandoned its early dedication to actual civil rights, in favor of government coercion aimed at equality of outcomes and punishing those who didn’t adopt the proper ‘enlighted’ attitude.

      2. “[T]he point of our brief is that, if there’s a right to refuse to deal in this situation, there would be a right to discriminate based on religion, sexual orientation, race, etc. “.

        First of all, don’t we have a Constitutional Amendment or three that address the Government’s right to discriminate on the basis of at least some of these? Your argument seems to confuse and conflate the implications of a *private* entity which proposes to couch action as speech, and those when it is the Government which proposes to do so. Inasmuch as our Constitution both expressly and by interpretation precludes the government from undertaking at least two of the purportedly illustrative categories of discrimination you identify, I don’t see how they’re germane to a discussion of whether state conduct is constitutional.

        More importantly, your argument rather transparently transposes the basis of the State of Arkansas’ determination. You’re correct that an individual’s payment of taxes, for instance, is an either/or proposition independent of the individual’s basis for undertaking that action, and holds no expressive content in and of itself. Punishing the failure to pay taxes is entirely independent of the speech explaining my reason for refusing to pay taxes. And concomitantly, I assume you would agree that if I pontificate loudly in the public square that taxes are a tyranny the equivalent of death, but dutifully cut the government a check for its share of my earnings, I may pontificate to my heart’s content. But here the governmental conduct at issue in the Arkansas statute–contracting–isn’t based on the pure action of the would-be contractor itself–engaging or not engaging in business with Israel– but rather on the statement accompanying such action.

        Put this another way: Assume I’ve never done business with Israel. Am I “boycotting” Israel, or do I simply not have a product anyone in Israel wants to buy, or, simply never had any basis to purchase anything from Israel? Perhaps, for instance, I run a corner lemonade stand which my own private orchard more than suffices to supply, and nobody in Israel thinks its worth traveling to the United States for a 75-cent cup of Lemonade. I would posit, that Arkansas’ refusal to do business with me, then, could only be on the basis of a statement by me that I have not done business with Israel because I am “boycotting” them. That’s not a governmental determination grounded on my conduct, but rather one grounded in my speech, and that’s transparently protected by the First Amendment.

  8. A limousine driver cannot refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens)

    Not at all clear that this is even covered by discrimination laws. If a limousine driver says, I don’t care if you are gay or straight, I will drive you anywhere you want, airport, home, a birthday party, your office, or whatever. But I won’t help you get to a party to celebrate sin, i.e, same-sex marriage. And this is so even if you are straight yourself. That is not discrimination on the basis of sexual orientation, IMO. (Although courts and administrative agencies have bent the law to make it so.) But, concededly, this is a matter of statutory interpretation, not First Amendment law.

    Now change the facts a bit — someone wants an artist to create an artistic invitation for a same-sex wedding. Creating such an invitation is expression within the First Amendment, and should be exempt from discrimination law. This is where the wedding-cake cases will go if the issue ever returns to the Supreme Court.

    1. I appreciate your argument, but many states take a different view of their discrimination laws, and do treat refusals to serve same-sex ceremonies as sexual orientation discrimination. (That’s a separate question from whether there is a First Amendment right to refuse to create invitations, photographs, wedding cakes, etc.; we used the limousine example because it’s generally accepted that any such First Amendment exemption wouldn’t apply there.)

      1. I am well aware of that. It is just dishonest, IMO.

        The paradigm for discrimination issues was the anti-black discrimination that was prevalent up to the 1960s. And that discrimination clearly denied services to blacks regardless of how it was used. It never occurred to anyone that saying, “sure, I will serve blacks, I just don’t want to cater the NAACP convention, as I don’t agree with their views” is racial discrimination.

        1. Wouldn’t the better analogy be whether refusing to provide service for an interracial wedding is discrimination on the basis of race?

    2. ” Creating such an invitation is expression within the First Amendment”

      Is that certain? In copyright law, work-for-hire is the expression of the person who commissions it, not the person who performs it.

      1. What does work-for-hire, a copyright doctrine, have to do with the First Amendment? The First Amendment does not allow the govt. to force someone to engage in expressive conduct, even if it was written by someone else.

        Can the govt. force a newspaper to print an op-ed (or a reply to its own previous op-ed)? No, it cannot. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In that case, the item was clearly written by someone else and would have been identified as such. Yet the SCOTUS held the Florida statute that would have required the newspaper to print it to violate the 1st amendment.

        1. “What does work-for-hire, a copyright doctrine, have to do with the First Amendment?”

          Nothing, unless you’re trying to decide if work-for-hire is “expression” under the First Amendment, and looking to see if the question has already been answered in other areas of law.

          ” The First Amendment does not allow the govt. to force someone to engage in expressive conduct”

          Nor did anyone suggest that it does. Aren’t lawyers usually better at reading?

  9. […] to contract with particular entities, and which are likewise not protected by the First Amendment.[1] But using such terms to refer to one’s commercial choices does not create a First Amendment right […]

  10. It is notable that all of Professor Volokh’s examples of laws banning refusal to deal involve parties soliciting business from the public. They are either (1) sellers, or (2) buyers soliciting bids. While these prohibitions go beyond common-law rules, its easy to see how they emerge from traditional rules governing common carriers, public accommodations, and partiality.

    But boycotts often involve refusals to deal by parties who solicit nothing. They refuse to shop at a particular store. They decline to ride a certain bus. They decline to buy meat. They choose Coke over Pepsi. It’s pretty easy to imagine there being a deeply rooted tradition that people have the right to make such decisions on a personal basis. Indeed, it is hard to see how a law targeting this conduct is not simply a law transferring property from A to B.

    Ultimately, therefore I find any argument that there is no right to boycott uncompelling unless it can either (1) explain why no right exists in the second type of circumstances, or else (2) trace the lines of the limiting principle that recognizes a right there.

    Perhaps I can be persuaded that this concern is irrelevant if there is an authoritative construction of “boycott” that excludes the second type of circumstances.

    But if the argument is simply that an anti-boycott law won’t be enforced (or be enforceable) in the second type of circumstances, I find that unpersuasive. And here’s where the First Amendment comes in. The reason is that the contractor here is forced to engage in an act of compelled speech when they promise not to boycott. If the contractor has a right to engage in some forms of boycott, then he should have a right not to have the state make him a liar when it comes to the exercise of that right.

    1. JimM47: Bans on discrimination in public accommodations do generally involve businesses who “solicit business from the public” — but that’s limited to public accommodations. But bans on discrimination in employment have no such limitation: If you refuse to hire Catholics because you’re boycotting the Catholic Church and people who support it, you’re violating antidiscrimination law even if all your hiring is by word of mouth rather than through advertising. Same for labor law; even if you hire without public advertising, you can’t fire people because they are union members on the theory that you are boycotting unions. Likewise, refusal to deal that’s barred by antitrust laws applies even when there’s no public solicitation of business.

  11. IANAL so I’m just curious; how exactly is doing commerce not currently a part of association? How do you transact without associating with someone?

  12. […] to contract with particular entities, and which are likewise not protected by the First Amendment.[1] But using such terms to refer to one’s commercial choices does not create a First Amendment […]

  13. What, if anything, is the proper remedy for the state if the company enters a contract, signs the non-boycott certification, and then does not business with Israeli entities?

  14. I’m unclear on why it is the state’s business what foreign nations people do business with (or don’t). What state purpose are these laws serving?

    1. Seems nobody has an answer for this?

  15. Another thing…as appropriate noted, we shouldn’t (and it’s often illegal) to boycott an individual for race/religion/sexual orientation, etc. etc.

    In this case we’re talking about a COUNTRY not an individual.

    Yes we should protect individuals – and we SHOULD NOT be in the business protecting a foreign country because of its policies.

  16. And another thing…laws generally have three actors: the protectees (usually the “Public”), the perps, and the law makers/enforcers (i.e. the govt).

    So, in this case, who are the protectees?

    Why are we penalizing our fellow citizens (who are otherwise in good standing)?

  17. I sometimes have a hard time when reading Professor Volokh’s postings distinguishing between his arguments of how the law *is* and how it *ought to be*.

  18. […] the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I’ll add a few words […]

  19. […] the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I’ll add a few words […]

  20. […] the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I’ll add a few words […]

  21. “it is the foundation of the wide range of antidiscrimination laws” — such laws may trump First Amendment for enumerated protected classes. But “companies doing business in Israel” is not a recognized protected class like race/gender/ethnicity. So First Amendment can protect boycotts, but some boycotts (like a boycott of Jews) can still be proscribed when compelling government interest is shown.

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