Reason Roundup

Georgia Can't Compel School Speakers To Promise They Won't Boycott Israel, Argues New Federal Lawsuit

Plus: Sanders tops Biden in new national poll, how federal housing policy is getting families evicted, and more...

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zumaamericasfifteen325502 | Erik Mcgregor/ZUMA Press/Newscom
(Erik Mcgregor/ZUMA Press/Newscom)

Lawsuit seeks to overturn Georgia's Israel boycott law. Civil rights organizations are suing in federal court on behalf of documentary filmmaker Abby Martin, who was uninvited from a scheduled speaking engagement at Georgia Southern University after refusing to sign a pledge that said she would not boycott Israel.

"The organizers were afraid my pro-Palestine activism & film Gaza Fights For Freedom would violate Georgia's anti-BDS law," wrote Martin on Twitter in January. BDS stands for boycott, divestment, and sanctions.

"Modeled after the global South African anti-apartheid movement, the BDS movement's stated goal is to pressure the Israeli government to end its occupation of Palestinian territory," the Georgia Council on American-Islamic Relations (CAIR-Georgia) explains.

"I will not forfeit my constitutional rights by signing this pledge," said Martin at a press conference yesterday. 

The anti-BDS law in Georgia, passed in 2016, forbids government-run institutions in the state from contracting with people who can't or won't certify that they're not boycotting companies based in Israel or Israeli-controlled settlements or companies that do business with them. Georgia was the sixth U.S. state to say so, passing the measure not long after Mike Pence, then-governor of Indiana, signed a similar bill into law in his state. As of last year, 27 states had adopted similar laws.

In Georgia, "the law applies only to state contracts worth at least $1,000 and involves no investigation or extensive paperwork," explained the Atlanta Jewish Times back in 2017. "A potential contractor just has to sign a statement saying it does not boycott Israel."

Of course, not everyone finds that to be such a minor thing. Asking Americans to sign some pledge of allegiance to certain goods would be weird enough if we were talking about locally made products. Georgia is asking any contractor hired by a state institution to pledge to help prop up another country's businesses. It would be downright bizarre even if U.S. politicians didn't regularly and publicly perform ritual displays of reverence for Israel.

The new lawsuit against the University System of Georgia, filed Monday, comes from CAIR-Georgia, CAIR Legal Defense Fund, and the Partnership for Civil Justice Fund. Last year, CAIR helped overturn an anti-BDS law in Texas. In that case, the District Court for the Western District of Texas concluded that "the First Amendment does not allow" such a law.

"By canceling a journalist's speaking engagement on a college campus because she refused to pledge support for a foreign government, the State of Georgia has blatantly violated the First Amendment's guarantee of freedom of speech," CAIR-Georgia Executive Director Edward Ahmed Mitchell said in a statement yesterday. "Every American has the constitutional right to engage in political boycotts, and the State of Georgia does not have the right to punish any American for doing so."

Earlier this year, a federal court dismissed a challenge to Arizona's anti-BDS law, but only on procedural grounds.

First Amendment lawyers disagree over the constitutionality of these bills, however.

"Decisions not to buy or sell goods or services are generally not protected by the First Amendment," wrote Eugene Volokh, Cornell law professor Michael C. Dorf, and Northwestern University professor Andrew M. Koppelman in a 2019 amicus brief for a case challenging Alabama's anti-BDS law. More:

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.

More from The Volokh Conspiracy on the matter here, here, and here, and from Reason's Jacob Sullum here.

ELECTION 2020 

Bernie Sanders bests Joe Biden in latest poll: 

See also: Where the 2020 Democrats stand on sex work decriminalization. Rep. Tulsi Gabbard (D–Hawaii) told Reason:

If a consenting adult wants to engage in sex work, that is their right, and it should not be a crime. All people should have autonomy over their bodies and their labor.

Most of the other candidates have been much more equivocal or publicly silent on the issue, including Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.). But Sanders and Warren are sponsoring a bill to study the effects of FOSTA, which made hosting content that "facilitates prostitution" a federal crime.

"I agree we could use more research," says Bella Robinson, sex worker and executive director of COYOTE Rhode Island. "But why would we trust the government?"

More here.

FREE MINDS

Federal housing policy is getting families evicted. The Washington Post reports on Taja Robinson, who was kicked out of her Silver Spring, Maryland, apartment for smoking cigarettes in the parking lot. The subsidized housing unit (and many others across the country) is acting in response to a U.S. Department of Housing and Urban Development ban on smoking in public housing that includes any areas within 25 feet of a building.

"Banning public housing residents from smoking is unfairly discriminatory for a variety of reasons," University of Houston law professors Dave Fagundes and Jessica L. Roberts write in a 2019 essay published in the Northwestern University Law Review. They continue:

Because a violation could lead to eviction, the policy may well push many public housing residents out onto the street, ironically worsening health outcomes. The rule also intrudes into the private lives of smokers in public housing by forbidding them from engaging in lawful conduct in the sanctity of their homes. It singles out smokers for regulation in a way that validates stigma. Finally, HUD's smoke-free policy poses unappreciated distributional concerns, with the heaviest burdens falling on historically disadvantaged populations like the elderly, people with disabilities, certain racial and ethnic minorities, and the poor.

Read the whole essay here.

FREE MARKETS 

Trump proposes getting the Food and Drug Administration out of tobacco regulation.

QUICK HITS

  • Tom Steyer will see fellow Democratic presidential candidates' plans to raise the federal minimum wage to $15 an hour and raise them one $22-per-hour minimum wage.
  • Virginia legislators are advancing bills to usher in marijuana decriminalization, legal casinos, online sports betting, and new gun regulations. The state may also finally remove a law criminalizing sex between unmarried people from the books.
  • Avalon condemns "the decentralization of the family" and David Brooks approves (and, of course, takes the opportunity to beat up on freedom and individualism again).
  • A New York doctor is advancing a simple test that could help explain why many miscarriages happen. Zev Williams, director of the Columbia University Fertility Center "has a patent on the method of preparing and testing samples and anticipates he will work with a commercial partner to offer it to doctors across the country," reports NBC News. "Eventually, he hopes to further lower the cost."