Free Speech

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

Prof. Michael Dorf, who co-signed an amicus brief with me on this subject, adds more in response to an exchange with a law professor on the other side.

|The Volokh Conspiracy |

Here's Michael's post, from Dorf on Law:

In Arkansas Times v. Waldrip, the U.S. Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech—Professors Andrew Koppelman, Eugene Volokh, and I—take 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 that go beyond what I wrote on this topic back in February and what we say in the brief.

Some substantial portion of the argument is doctrinal. We cite Rumsfeld v. FAIR for the proposition that a boycott—as opposed to speech accompanying a boycott—is not speech. The other side cites NAACP v. Claiborne Hardwarefor the proposition that political boycotts are protected speech even apart from the speech that accompanies them. For the reasons we lay out in our brief and that Prof. Volokh summarizes in his blog post, I think we have the better doctrinal case. That said, I'll concede for the sake of argument that there is sufficient wiggle room in this and other constitutional doctrines, that one could say that it is an open question whether boycotts themselves—in contrast to speech accompanying boycotts—should be deemed protected speech.

So the question then becomes this: Should boycotts be treated as speech? Answering that question requires both conceptual analysis (more about that below) and some sense of the consequences of treating boycotts as speech. One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws. If refusal to buy goods from Israel is speech because one's motive is opposition to Israeli policy (or Israel's existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.

In the briefs for the other side and my discussions with people who come down on the other side, I have encountered two main arguments why one supposedly needn't worry about anti-discrimination law. First, they say that there is a compelling interest in public accommodations laws forbidding anti-LGBT discrimination but not in laws like the Arkansas anti-boycott-of-Israel law. Second, they distinguish between purchaser boycotts (protected they say) and seller boycotts (unprotected they say). Neither contention is persuasive.

(1) I agree that there is no compelling interest justifying the Arkansas law or others like it. Indeed, I think such laws are unwarranted. I oppose them on policy grounds. I also agree that there is a compelling interest in public accommodations laws. However, one must think strategically about such issues. The question is not what some liberal law professors regard as a compelling interest but what a majority of the Supreme Court will ultimately regard as compelling. I have no confidence that the Court would find a compelling interest in forbidding discrimination on the basis of LGBT status.

Indeed, we have good reason to think the opposite based on Justice Alito's majority opinion in Hobby Lobby v. Burwell. Here's what I wrote last month:

"Dissenting in Hobby Lobby, Justice Ginsburg charged that the Court's aggressive use of [the Religious Freedom Restoration Act (RFRA)] could undercut laws that protect against discrimination based on race and sex, including sexual orientation. Not to worry, responded Justice Alito for the majority: RFRA allows that other federal statutes—such as anti-discrimination laws—can override religious objections where those other federal statutes amount to the least restrictive means of advancing compelling interests. And, he added, '[t]he Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.' Notably, despite the fact that Justice Ginsburg expressly pointed to LGBT discrimination, Justice Alito responded with respect to racial discrimination only, thereby implying that the Court's now-even-more-conservative majority might think there is no compelling interest in addressing LGBT discrimination."

As a practical matter, my many friends on the other side of the Arkansas Times case are wrong that their position poses no threat to anti-discrimination law.

(2) What about the claim that purchaser boycotts are different from seller boycotts? The claim is problematic in at least two respects.

(a)  In an economic sense, there is no real difference between a purchase and a sale. When Henry sells Georgia a wedding cake, Henry exchanges the wedding cake for money from Georgia. Henry had a cake and Georgia had some money. They trade. It's hard to see why one side of the transaction is expressive and the other isn't. It's even harder when we think about the function of money.

Imagine a barter economy in which people meet at the market to exchange goods. Jim is a baker and Sheila is a farmer. Jim trades his baked goods for raw materials he uses to make more baked goods as well as for finished products that his family needs but that he doesn't produce. Sheila trades the wheat she grows on her farm for items she needs. Now let's suppose Sheila is trying to decide whether to trade some of her wheat with Jim in exchange for a cake. If, in the money economy of the prior paragraph, Georgia, as the "buyer," is engaged in speech by refusing to purchase cakes from Henry (perhaps because Henry obtains some of the ingredients for his cakes from Israel), then Sheila is equally engaged in speech when she refuses to hand over a sack of wheat to Jim in exchange for a cake. (Sheila doesn't want to trade with Jim because Jim trades cakes for sugar with Ophelia, whose beet farm sits on land that Sheila believes rightly belongs to indigenous people.) But if refusing to exchange wheat for a cake is speech, then obviously so is refusing to trade a cake for wheat also speech, assuming some ideological motive, such as opposition to the use of the cake in a same-sex wedding ceremony. And because there is nothing more or less expressive about barter than monetary transactions, it follows that selling is every bit as expressive (or non-expressive) as buying. And that makes sense intuitively.

Economic transactions either are or are not inherently expressive. Thus, if the plaintiff and its amici are right that purchase boycotts are speech, so are seller boycotts. The purchaser/seller distinction does not work as a basis for protecting public accommodations laws against the consequences of treating purchaser boycotts as speech.

(b) Meanwhile and also troublingly, a rule that treats boycotts—even if only purchase boycotts and not seller boycotts—as inherently expressive threatens to Lochnerize the First Amendment. Suppose that before Congress zeroed out the tax due for failure to maintain minimum coverage under the Affordable Care Act, Tea Partiers organized a boycott of mandated health insurance and defended on free speech grounds. Or suppose that right now, with the employer mandate still in force, employers with ideological objections to the ACA refuse to purchase health insurance for their employees or to pay the associated financial penalty. These would not need to be religiously motivated refusals. Rather, if refusal to purchase a good or service based on a political view is inherently expressive, then the individual and employer mandates could only be validly applied if they satisfy strict scrutiny as applied by the increasingly conservative federal judiciary. Even the very creative lawyers who challenged the ACA on multiple grounds lacked the temerity to suggest that it violates free speech. But if the challengers of the Arkansas law prevail, such a claim could be coming next. So could a wide range of other economic-liberty-as-free-speech claims challenging progressive legislation.

* * *

Here's another issue: The ACLU, which has filed on the other side of this case, describes the Arkansas law as "suppressing one side of a public debate." After all, Arkansas does not require state contractors to certify that they do not boycott goods from or firms that do business with Palestine or anywhere else. Isn't that a problem?

No, unless one assumes the conclusion. If boycotts are speech, then sure, a law targeting boycotts targets speech, and a law that targets only some boycotts would be "content-based." But the very question under discussion is whether to treat a boycott as speech. As I have explained, there are conceptual and practical reasons not to.

To be sure, a law targeting a boycott could implicate free speech under special circumstances. As I observed in my February post and as Profs Koppelman, Volokh, and I acknowledge in our brief, the Arkansas law could implicate the First Amendment if the record contained evidence of censorial motivation on the part of the Arkansas legislature. Suppose that a majority (or a decisive minority) of Arkansas legislators voted for the legislation at issue for the purpose of suppressing the message sent by boycotts of Israel rather than because of what they regarded as the economic impact of boycotts of Israel. That might well violate the First Amendment.

But absent such evidence of illicit subjective motive, the fact that a law treats economic transactions involving one foreign country or territory differently from economic transactions with others is not a First Amendment issue, even if the difference implicates a longstanding conflict. Purchases of certain goods from Iran but not the same goods from Saudi Arabia are forbidden. Tariffs differ by country and region. Etc. Nobody thinks these differences implicate the First Amendment, even if someone wants to make forbidden purchases of goods from North Korea or Venezuela to make a point.

Hold on, you say. Laws governing tariffs and sanctions are enacted at the federal level. What business does the state of Arkansas have in regulating economic transactions with foreign firms and governments? That's a fair question. Perhaps there could be a challenge to the Arkansas law under some conception of a "dormant foreign commerce clause" doctrine. The Supreme Court avoided ruling on whether there is such a doctrine in Crosby v. National Foreign Trade Councilwith respect to a Massachusetts law that forbade state entities from purchasing goods and services from companies doing business with Burma. But even if there were a dormant foreign commerce clause claim available, that would have nothing to do with free speech.

Even assuming the doctrinal question is open, there are powerful conceptual and pragmatic grounds to conclude that boycotts, absent more, are not expression, and that therefore, absent proof of censorial legislative motive, laws forbidding boycotts do not infringe free speech.

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  1. “If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”

    WRONG.

    Israel is a sovereign national and does not fall under U.S. jurisdiction or sovereignty, and therefore does NOT enjoy any U.S. constitutional protections.

    1. …sovereign nation…
      PLEASE ADD AN EDIT FUNCTION.

    2. So whether something flying out of your mouth is speech depends on who the listener is, and their rights?

      That’s not how that works.

      1. apedad, you’ve bungled it. This is about activity of people in the U.S. The question is whether the activity is speech. Protection doesn’t depend on whether the target of activity/speech is outside U.S. jurisdiction. Otherwise we could pass laws forbidding criticism of Putin. The issue, again, is whether a boycott (or a wedding service) is speech. If a mere boycott were speech, then any decision to not sell for [Reason] would be protected. Still, one might differentiate a custom artistic creation (eg cake, flowers) from construction services or selling of various mass-produced objects.

        1. But their theory is about who needs protection not who is taking an action.

          The law is “protecting” Israel which has no constitutional right to protection.

          1. Who has advanced the theory that the constitutional issues in this case are based on who needs protection? Can you provide a citation that includes this argument?

            1. Read the quote in my original comment.

              1. Where in the quote is it saying that Israel has constitutional rights?

              2. That quote does not in any way raise the issue you are claiming.

                It’s about the in ability to distinguish seller side boycotts from purchaser side boycotts on any consistent logical basis. In either case it’s about the boycotter and whether or not the boycott is speach and the rights of the boycotter, it has exactly squat about the rights/ need for protection of the entity being boycotted.

          2. What difference would this make? Israel may not have any constitutional rights to protect, but the issue is whether Arkansas has the power to protect Israel. It may have that power, even if Israel has no constitutional rights.

            1. But Prof. Volokh, et al, are indeed making the argument that Israel is entitled to constitutional protection.

                1. Here, I’ll let Prof. Volokh answer you.
                  “One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws. If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”
                  He is CLEARLY saying (and I have no idea why you guys are being blind about this) that IF refusal to sell goods to LGBT customers or for same-sex weddings is speech then refusal to buy goods from Israel is ALSO speech.
                  In other words, if a business is allowed to boycott Israel on ideological grounds then businesses should be able to refuse to sell goods to LGBT customers if they’re ideologically opposed to gays, etc. – which would gut public accommodation laws (this is Prof. Volokh’s argument).
                  I’m only addressing this specific, particular argument (not boycotts, free speech, etc.).
                  Prof. Volokh is attempting to inflate the constitutional protections in place for people under U.S. jurisdiction to cover Israel – an argument which simply has no basis.

                  1. But the focus of this analysis is the scope of the constitutional rights of the business owner — not the rights of either Israel or the LGBT customers. So the point you’re making would appear to be wrong.

                    1. OH MY FREAKING GOD.

                      VOLOKH RAISED THIS POINT – NOT ME.

                      I’M TRYING TO SHOW HOW THIS PARTICULAR POINT THAT HE MADE IS WRONG.

                    2. And everyone else is pointing out, quite patiently, that it is you who is wrong. Yet you are the one devolving into histrionics.

                      You’ve repeatedly demonstrated that you don’t understand Eugene Volokh’s point, civil rights laws, the Constitution, or really much of anything having to do with this issue. Why don’t you just bow out of this one? It’s too late to do so gracefully, but it’s still better than continuing to make an ass out of yourself.

                  2. I see what you misunderstand. Public accommodation laws are not based on the constitutional rights of LGBT customers. They’re statutory rights. LGBT customers do not have a constitutional right to be served by private parties. Black people don’t have that right, either. The state of Arkansas is not constitutionally required to refuse to do business with business entities that discriminate against LGBT or black customers.

          3. Many anti-discrimination laws are not based on constitutional rights.

            1. The Supreme Court disagrees with you.

              1. Which case?

              2. 1964 civil rights act. Enacted explicitly on the basis of the commerce clause, NOT the enabling legislation clause of the 14th amendment.

                This was critical because the latter only applies to governmental action. As, yes, stated by the Supreme court.

      2. Another way to address it, under current jurisprudence, is that they’re both speech but public accommodation laws protecting classes of American citizens satisfy strict scrutiny, whereas Arkansas’s anti-Israel boycott law does not.

        The better remedy is for the people of Arkansas to not enact stupid fucking laws.

        1. Yeah, the old compelling governmental interest in ensuring that people have access to wedding cakes. Sounds like a excuse for judges to uphold unconstitutional laws that they like.

          1. Under Roberts v. US Jaycees, “eradicating discrimination” can be a compelling interest. There would be serious issues with other prongs of strict scrutiny, though.

            1. I have no doubt that that is the precedent. But as a non-lawyer, I lack the training to distinguish between a finding of a compelling governmental interest and a naked policy choice.

              1. Don’t “naked policy choice[s]” and “compelling government interest” have some overlap?

                1. Well, in theory, “compelling” suggests that there is no choice. But in practice, “compelling” seems to mean that the interest aligns with the policy preferences with judges. Governments are in no sense compelled to force bakers to bake wedding cakes.

  2. In an economic sense, there is no real difference between a purchase and a sale.

    States themselves point this out with laws that trading things for things, such as what farmers do, are sales and they owe the cash equivalent’s taxes on. And also that neither side is special in the transaction, sales taxes are owed on the transaction, though usually it’s the retail who has to send in the money.

    1. I agree that the two are economically similar, but the reason people treat them differently is because they are different in other ways. Consumers (purchasers) are generally pickier than sellers. Starbucks doesn’t care who its consumers are (except to the extent its consumers care and want Starbucks to care). They want cash. Hobby Lobby can say it cares who its consumers are, but it sells to murderers and rapists, too. At the end of the day, Hobby Lobby wants cash, too. If a murderer walks into Hobby Lobby and buys garbage, Hobby Lobby isn’t harmed. But if I have to walk into Murderers, Inc., run by murderers, because the government compels that purchase, that’s a much bigger infringement on my personal liberty than anything Hobby Lobby (or Starbucks) suffers by engaging in a transaction they fundamentally exist to secure.

      1. This becomes a closer question the more personalized the goods (and especially services) that the seller is offering. A piano teacher is probably pickier than Starbucks about customers, because of the nature of the good/service being sold.

      2. I agree, but I’m not even sure they are economically identical, whatever that might mean, which is not clear to me.

        There are differences in addition to the points you mention. For one thing, you might refuse to barter with me for the simple reason that you don’t want the item I’m offering in trade. (That’s one thing that makes money such a useful convention.)

    2. Under the civil rights regime, it is unlawful to refuse to sell one’s home on the basis of race. Is it unlawful to refuse to purchase a home on the same basis?

      1. As a practical matter, no. It’s not really unconstitutional for you (as a private person) to refuse to sell your house on the basis of race. But the federal courts are not going to enforce race-based restrictions on housing covenants, either. In the case of refusing to purchase a house on the basis of race, there’s nothing for the court to get enmeshed in, since there isn’t a sale in the first place.

        1. I realize I didn’t read your comment carefully enough. You were talking about “civil rights regime” and not the Constitution. My bad. Disregard.

  3. “So the question then becomes this: Should boycotts be treated as speech? ”

    Shouldn’t the question be, “Is freedom of speech the only constitutional right anybody enjoys?”

    Don’t you get the impression that the 1st amendment is doing a lot of the heavy lifting the 9th amendment was expected to handle, due to the courts refusing to give the 9th any application?

    1. As the anti-Federalists predicted.

    2. They did pack a lot into the 1A. It protects religion, speech, and…

  4. A question for those who argue that boycotting Israel is protected speech.

    I represent multiple New Jersey municipalities. Under New Jersey law, in order to do business with a New Jersey municipality, I must certify under oath that I do no business with Iran. (For the record, I don’t and have never be asked to do business with Iran). If being required by law to not boycott a country as a condition of receiving a public contract unlawfully infringes the public contractor’s free speech rights, doesn’t it follow that requiring a public contractor by law to boycott a country is a form of compelled speech – also a First Amendment violation? If so, why has the ACLU not sued New Jersey over this First Amendment violation?

    1. I’m going to guess that it’s because Iran is under an official US embargo, which means what you’re really certifying is that you’re in compliance with the law.

      1. Was that true when Obama’s agreement with Iran was in effect?

        1. You mean, the last few months of the Obama administration? (Since he waited until 2016?) No.

      2. No, you are correct, even under the JCPOA, U.S. firms would have remained prohibited from doing business with Iran, with limited exceptions. But again: if the decision whether or not to do business with a country is a form of speech, even the imposition of sanctions at the federal level could be deemed a First Amendment violation and be subject to “strict scrutiny” review.

          1. So you should be able to send Iran high quality aluminum tubes so they can refine uranium because free speech?

            Okey dokey.

            1. I think the government will be able to show that they have a compelling governmental interest in preventing Iran from refining uranium.

            2. Because no rational human being could possibly draw a distinction between uranium refining equipment and, say, a shipment of New Jersey tomatoes. Or do you consider tomatoes to be weapon grade material?

              1. “Or do you consider tomatoes to be weapon grade material?”

                Some people like to throw them at other people, particularly public figures as a sign of disapproval, so yes, tomatoes are weapons grade material. 🙂

            3. “So you should be able to send Iran high quality aluminum tubes so they can refine uranium because free speech?”

              The FEDERAL government has a role in regulating trade with foreign nations. But the states don’t.

        1. I don’t think the decision whether or not to do business with a country IS a form of speech. Which isn’t to say I don’t think an argument can’t be made that boycotting isn’t a right, I just don’t think it’s a right that ought to be shoehorned into the 1st amendment.

          As for why the ACLU makes the distinction, who knows? It isn’t as though they’re still attempting to be principled about these things, maybe they just dislike Israel enough to object to anti-BDS laws, but don’t like Iran enough to find the sanctions objectionable.

          1. And that, ultimately, is my point, together with questioning whether boycotting or not boycotting a nations‘s businesses is a form of speech.

            1. By definition, it is economic arm twisting because speech isn’t enough. It is an attempt to create harm. That is why it works.

              Keep in mind these are the same people who try to define speech as action so that it can be regulated.

              Their underpants aren’t just on display, they are on display and ripped and soiled.

              1. I don’t think a boycott is necessarily an attempt to cause harm. I boycott PayPal because I don’t like their policy of restricting what legal products I can pay for using them. They got into “deplatforming” quite early. I’m not trying to harm them, I just don’t want to have anything to do with them.

                Now, BDS? Absolutely trying to cause harm. But I don’t think you can generalize that to all boycotts.

      3. Yes, but if the government can impose sanctions against Iran without infringing free speech, then the government can choose not to impose sanctions against Israel without infringing free speech. I thought that was the point of the anti-BDS laws, at least at the federal level. The government, in conducting foreign policy, does not want to sanction Israel nor does it want to allow private interests to override the government’s foreign policy decision by privately imposing sanctions. Since imposing (or not imposing) economic sanctions “merely” infringes “economic freedom” and not “fundamental freedom” like free speech, the government faces a low hurdle in enforcing its sanctions policies. Once one views economic activity as speech though, then the government would be precluded from both compelling people to participate and preventing people from participating in sanctions against Iran or Israel.

        The government may not be able to compel you to buy broccoli but, if you are going to buy broccoli, then the government can prevent you from deliberately avoiding buying broccoli from Israel.

  5. Professors Volokh and Dorf, I appreciate that continue to engage with criticism.

    Professor Dorf criticizes a distinction between purchaser boycotts and seller boycotts, saying there are unworkable elements. Fair enough. Perhaps that isn’t the right place to draw the lines. I’ve pondered a slightly different distinction between public and private transactions, and Professor Volokh has pointed out that this distinction is in tension with current doctrine. Perhaps a third option is business transactions versus end-consumer transactions.

    But maybe the more honest way for me to respond is that I have a particular fact scenario in mind. Imagine that a private bus company has imposed racially segregated seating. It seems like (1) it should be constitutional to ban that practice, and (2) it should be unconstitutional to ban private citizens from boycotting the bus company until it changes its practices. Now, I don’t know exactly what kind of line needs to be drawn to permit this — i.e. seller-purchaser, etc. But my strong prior is that it must be possible to draw some principled line here. And I am going to retain that prior unless defenders of the Israel-boycott law start forthrightly saying “no, if you want the anti-segregation law to be constitutional, then the law forbidding the anti-segregation boycott has to be constitutional too.”

    Its very hard to give up on the feeling that Claiborne supports the intuition that the anti-segregation boycott is constitutionally protected. I know that Professor Volokh has argued that Claiborne protects only the speech adjacent to the boycott. But Claiborne is littered with the word “conspiracy.” Where else in the law do we say that an underlying act can be criminalized, but that a conspiracy to commit that same act cannot? Cf. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) (quoted by New York v. Ferber, 458 U.S. 747, 761, (1982)); see also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). It seems like a necessary implication of Claiborne that the boycott itself had some protected status — whether that was under the First Amendment or (more likely) as a matter of substantive due process.

    1. Let’s take a slightly different fact scenario. The bus company welcomes all races in every seat, but a white supremacist group organizes a boycott of the company because of this policy. I’m guessing you think a law which bans that particular boycott passes constitutional muster.

      Assuming I am right, how do you distinguish between the two boycott laws?

      1. I see no material distinction whatsoever between my hypothetical and yours. Same exact law. Same facial challenge. Only the viewpoint is changed, and that isn’t legally relevant. (The fact that viewpoint is irrelevant is why I have made no effort, one way or the other, to talk about whether an anti-segregation boycotter is morally equivalent to an anti-Israel BDS boycotter.)

  6. Answering that question requires both conceptual analysis (more about that below) and some sense of the consequences of treating boycotts as speech. One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws.

    One of the great summaries in literature: “There is all the difference in the world between paying and being paid.” — Melville, Moby Dick.

  7. What, exactly, is the state’s interest in suppressing boycotts of foreign nations? Is there an answer to this question yet? (It went unanswered in part I)…

    1. Still no answer?

      What is my position with regards to a boycott of Israel if my position is “buy American, and only American”? Is this an unAmerican position to take in Arkansas?

  8. “If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”

    This strikes me as silly, since ‘the state of Israel’ isn’t a suspect class. If they refused to deal with Jewish-owned businesses in general, that ought to violate public accommodation law, but that’s not the case.

    1. What does whether something is a suspect class — an element of equal protection law, not first amendment law — have to do with whether an act related to it is speech?

      1. Refusing to deal for expressive reasons could be presumptively protected under the First Amendment, but fall under “compelling government interest” impression if harm to a protected class is involved.

    2. I don’t see how you can refuse to deal with a Jewish ethnostate and NOT consider it the same as not dealing with Jewish-owned businesses.

      1. If somebody refuses to do business with Iran, you think that’s the same as them not doing business with all Muslim-owned businesses?

        Israel is a separate entity from Jewish-owned businesses. Some Israeli companies are Jewish-owned. But not all Jewish-owned businesses are Israeli companies. I assume there are even some Israeli companies that are not Jewish-owned businesses.

        1. Iran, while being an Islamic republic, is one of many. That’s why the “Muslim” ban was a silly label too. Banning ~5% of people from a group isn’t motivated by bigotry towards their faith and if it is, it’s rather ineffective.

          Israel is the sole Jewish state. If Iran were the sole Muslim state, I’d have an issue with Iranian boycotts too. We don’t need to get stuck on the issue of ownership. Boycotts negatively affect all business participants and Israel is the only state in the world that is majority Jewish.

          Saying a boycott has nothing to do with their Judaism is like saying UN resolutions against Israel have nothing to do with their Judaism when they’re passed by the 75 or so Muslim member states that couch their anti-Semitism in a semi-legitimate international government.

          1. So, Israel has no other qualities other than being Jewish, then?

            1. All I’m saying is that when people single out the sole Jewish state with a boycott, you can’t divorce “making their country fail/violating their sovereignty” from “destroying the Jewish people.” That’s the fundamental difference between BDS and the millions of American Jews who criticize Israeli policy.

  9. “In an economic sense, there is no real difference between a purchase and a sale. ”

    This is objectively true, but like any truth in life, if enough people believe it to be false, it is effectively false. Most people consider economics to be political now. Sellers (mostly, but this is changing too) still don’t care who buys their products, bar parties that would put them out of compliance with law. Buyers care a lot now about who they buy from. A purchase isn’t just a revealed preference based on price or quality, but an endorsement of said company and its values. Look at the Chick fil A protests; because its products are so highly regarded, the business is still profitable and people shop their despite public outrage. However, it is 100% undeniable that we now have an entrenched class of people who would be shopping at Chick fil A were it not for the controversy and values of ownership. If these people were insignificant in number, we wouldn’t see repeat municipality-wide bans of Chick fil A.

    The fact is that economics is entering a really scary era where the objective facts don’t matter and our feelings about the people operating a business do. I am deeply concerned about such a future because politicized ownership leads to politicized employees which, in turn, ultimately creates a politically segregated society where it becomes impossible to live and transact in a town/state/country without the proper morality that satisfies the Inquisition.

    1. I agree with you, though one can argue that the increasing cost of a-holish behavior is a result of honest market forces, whereas the Arkansas regulation is not.

      1. This might seem like a random tangent, but what is the libertarian answer to a society that very clearly votes to create an authoritarian government?

        I ask this because a free market could very well decide to increase costs for behavior they don’t like and that cost could eventually reach the point where a business will not employ people that don’t fit their customers’ morality. If that were to occur, business could be politically segregated to the point that a Republican would have to work for a Republican company in a Republican state that sells to fellow Republicans. Born in that state and don’t share their politics? Even if they don’t forcibly remove you, how will you be employable if the market operates this way? How will you be able to subsist if nobody will sell to you?

        I know market restrictions typically don’t bode well, but I worry that if we were going towards such an outcome, I don’t see how we could prevent it without restrictions. Or as some people here might say, destroying the Constitution to save the Constitution.

        1. “what is the libertarian answer to a society that very clearly votes to create an authoritarian government?”

          Don’t move there.

          1. And what if you already live there? I hope there’s a more satisfying answer than running with your tail between your legs. I for one don’t see a problem with un-libertarian tactics being used to maintain an otherwise libertarian society.

            1. “And what if you already live there?”

              Start packing.

              ” I for one don’t see a problem with un-libertarian tactics being used to maintain an otherwise libertarian society.”

              because you are no better than they are.

              1. So Jews should have just fled Nazi Germany and I’m no better than the Nazis are for wanting to use the necessary tactics to stop them.

                Yep, this is why Libertarians will always be a joke. At some point you have to start operating in reality.

                1. Oh wait, we’re talking about authoritarian regimes, so they use their rules to stop people from migrating and then genocide problematic populations who don’t like their “democratic” outcome.

                  Honestly, fuck off for that one. Dumbest thing I’ve ever read on this site.

    2. “In an economic sense, there is no real difference between a purchase and a sale. ”

      I think I disagree with this, but am not sure, because I don’t quite know what it means.

      In a barter transaction it’s true, but I don’t think it is where the sale is for cash. In barter, both buyer and seller receive some tangible object, or maybe an actual service. The nature of what the buyer and the seller receive is different in a cash transaction. The buyer gets the good, or the service, and the seller gets a claim on other goods other goods or services, which he may use lots of places, or save for future use, etc.

    3. “Look at the Chick fil A protests; because its products are so highly regarded, the business is still profitable and people shop their despite public outrage.”

      Mainly because the outrage is “public” only in the sense that it’s not secret, not in the sense that the public are outraged.

      ” However, it is 100% undeniable that we now have an entrenched class of people who would be shopping at Chick fil A were it not for the controversy and values of ownership. If these people were insignificant in number, we wouldn’t see repeat municipality-wide bans of Chick fil A.”

      Numerically, they ARE insignificant. The problem isn’t their numbers, it’s their positions. They are indeed “entrenched”, in positions of power.

      This is the problem of the day, all throughout the West: Almost all Western democracies have developed entrenched political classes, who have learned to game the system to keep people from outside their class out of power, and who have systematically different values from the general populace on a growing number of topics.

      1. I don’t know if you’ve been in these leftist pockets, but they’re pretty large. Right out of high school, I initially went to Northeastern and dropped out after my first year. While I was there, the student body voted not to allow Chick Fil A to establish a stand in the cafeteria because of Dan Cathy. Fun fact: same school AoC went to. Considering she’s a communist despite being an econ major, I sure dodged a bullet dropping out (I was an IB major at the time).

        https://www.huffpost.com/entry/chick-fil-a-franchise-northeastern-university-scrapped_n_1311755

        1. I have no idea what the relevance of anything you said is, but AOC went to BU, not Northeastern.

          1. Sorry, I always mix the two up. BU is right down the street.

            Anyways, the point was that the number of people who use the democratic process to politicize trade is much greater than I think some people realize. Our student senate voting 31-5 was a pretty wide margin. They didn’t get in there (student body was around 40k ppl when I attended) by just being an entrenched political class that isn’t supported by the majority.

      2. Of course, there used to be entire states without Chick-fil-A establishments in them. Do people who live in states with no Chick-fil-A stores engage in boycotts of Chick-fil-A stores, or is Chick-fil-A boycotting the state’s people?
        Since I left Oregon, they have opened several locations there, so maybe the question is moot.

  10. Your brief describes the boycotts as “refusing to deal with such companies based on the owners’ nationality”. But nobody’s boycotting a New York coffee shop because it’s owned by an Israeli. At issue are boycotts of companies that do business in Israel, even if company owners are French.

    Arguably, a boycott of voting-eligible Israeli citizens would be fine, too. Israel stresses that it’s a democracy; so who, if not its voting citizens, may be held to answer for its acts? Boycotts by _national origin_ (those simply born in Israel, regardless of current citizenship) are a different matter, but no one proposes that.

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