Can Courts Distinguish Anti-BDS Laws from Public Accommodations Laws for First Amendment Purposes?

|The Volokh Conspiracy |

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors' right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights. Full disclosure: I believe the former argument is clearly correct under current First Amendment doctrine, and joined an amicus brief in a recent Fifth Circuit case, Amawi saying so.

Putting precedent aside, the biggest practical problem facing those challenging anti-BDS legislation is that boycotts are form of "refusal to deal." The line between "refusal to deal" and "discrimination" is very difficult to discern. For example, let's say Joe runs a restaurant. He refuses service to mixed-race couples, in violation of Texas's antidiscrimination law. Joe defends himself in court by saying, "I am acting within my First Amendment rights by boycotting, i.e., refusing to do business with, mixed-race couples." On the surface, Joe has an even stronger First Amendment case than those challenging the BDS laws, because he is not doing business with the government, so the government would seem to have less of an interest in how he runs his business.

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff's side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

By contrast, the motivation for public accommodations law is to increase access to public accommodations for disfavored minority groups and individuals, regardless of the underlying motivation for the exclusion. Put another way, the underlying motivation is the idea that "public accommodations" should be open to the entire public. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans (who are more likely to have business and other ties to Israel), such laws are still primarily motivated by hostility to the boycotters' cause and are therefore viewpoint discrimination in a way public accommodations laws, which after all have roots in ancient English law requiring inns and taverns to be open to all, do not.

I don't buy that reasoning, as I do think that in the modern U.S., a major underlying rationale for public accommodations laws is indeed the hostility to the ideology of those who might exclude, such as the baker who doesn't want to bake cakes for same-sex weddings.

But let's assume a judge was persuaded, making anti-BDS laws facially unconstitutional, but public accommodations laws facially okay. What happens when business owner subjected to public accommodations laws make as-applied First Amendment arguments in their defense? Imagine a private school announcing it is boycotting black students who want to integrate the school because they are pro-integration, and defending themselves against an antidiscrimination lawsuit on the grounds that the local public accommodations law is unconstitutional as applied to the school, because it's engaging in a politically motivated boycott. Given that the Knight brief asserts that boycotts are constitutionally protected activity, why would the public accommodations law not be unconstitutional as applied?

I asked one of the professors who signed the Knight Brief privately why he thinks that the arguments of the brief wouldn't ultimately be used to successfully support such as-applied challenges. He provided a one-word response, "O'Brien." United States v. O'Brien (1968) holds that when the government is prosecuting symbolic speech, or combined speech/action, the underlying law must (a) further an important or substantial government interest (b) that is content-neutral; and (c) prohibit no more speech than is essential to further that interest.

The biggest problem with that argument is that the Supreme Court has declined two major opportunities to apply O'Brien to First Amendment challenges to public accommodations law, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy Scouts of America v. Dale. In each case, the Court was urged to apply the O'Brien test, and, in each case, not a single Justice applied O'Brien.

My conclusion, therefore, is any future free speech challenges to public accommodations law will not involve O'Brien, but will instead stricter traditional First Amendment standards, requiring the government to show a compelling interest and that its law is narrowly-tailored. If challengers to anti-BDS laws persuade courts that refusals to deal/boycotts are protected speech, then public accommodations and other civil rights laws will be vulnerable. Perhaps longstanding laws prohibiting discrimination based on race and sex would survive the compelling interest test. But Hurley and Dale suggest that broader, more controversial state laws will not necessarily survive judicial scrutiny. My guess is that appellate courts, being aware of this dynamic, are unlikely to open the Pandora's box of ruling that refusing to engage in economic relations is "speech" for First Amendment purposes.

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  1. Boycotts, by their very definition and purpose, go beyond speech into economic arm twisting. It’s not the message, which is speech. It’s the arm-twisting part.

    But I’m not trying to have my cake and eat it too. You don’t wanna deal? You shouldn’t have to. You wanna force people to deal? Then that is a power you granted to government, with all its warts.

    1. In context the first part of your objection is nonsense. Texas law doesn’t prohibit boycotting Israel. The Texas law is a boycott, specifically a boycott, by the state, of doing business with anyone unless they sign a statement certifying they do not boycott Israel. The thing that people are being required to do is not “not boycott”. It’s “make a statement that you don’t boycott.” And the state’s exercise of power is not over who you can do business with, but over who the state can do business with. The arm-twisting is the state; if you want a juicy government contract, you have to give a virtue oath.

      Your reply doesn’t confront the salient issue from Bernstein’s post. Do you think the state should be allowed to not do business with people they dislike, say communists?

      1. California (and maybe other states) in the 80s refused to do business with companies that would/could not certify that they did not do business with South Africa. As near as I can tell, no one even thought to raise a First Amendment challenge to these laws.

      2. The thing that people are being required to do is not “not boycott”. It’s “make a statement that you don’t boycott.”

        I’m pretty sure that the statement is required to be made under penalty of perjury. So there’s no meaningful difference between those two things. (But of course the law only applies to government contractors, not people generally.)

  2. This argument simply doesn’t make sense to me. Public accommodation laws prohibit discrimination on the basis of a class generally, not for specific categories within the class. They don’t, for example, prohibit specifically discrimination against African Americans, they prohibit discrimination based on race, regardless of what race one wishes to discriminate against. Comparing that to a BDS law that bars discrimination, not on the basis of national origin of a product or service generally, but specifically against products or services from Israel and only Israel, is illogical (and offensive, quite frankly).

    1. Even if we grant your argument, that only gets to the issue of viewpoint-based discrimination making a law a facially unconstitutional. But for an as-applied challenge, this is irrelevant to the speech-infringement claim. If boycotts are speech, and I am boycotting Jewish customers, the fact that the underlying law wasn’t intended to protect Jews as such is not relevant.

      As for being “offended,” please grow up. Whether a law meets a particular doctrinal test or not by analogy to another law has nothing to do with whether one thinks the laws are morally equivalent. And meanwhile, I think that anti-BDS legislation, which protects people from antisemitism, is far more morally praiseworthy that many public accommodations that protect, e.g., motorcycle gang members (Minnesota) or unmarried heterosexual couples (several states).

      1. What would be your support for not granting my argument, exactly?

        You’re trying to compare a law that protects against discrimination based on class to a law that protects against discrimination of only one specific iteration of that class, a law that is not facially neutral. That is the analogy you chose, and it’s insulting to the intelligence of this site’s readers. You do it to evoke an emotional response.

        If boycotts are speech, incidental restrictions on them are permissible if content neutral. You try to waive this away by saying the court hasn’t extended O’Brien in unrelated cases, but that’s utterly irrelevant.

        1. Both Dale and Hurley involved First Amendment challenges to public accommodations laws that didn’t primarily regulate speech, but not a single justice sought to apply O’Brien. I think it’s therefore safe to predict that in future cases involving First Amendment challenges to p.a. laws, the Court won’t apply O’Brien.

          As for not granting your argument, I don’t see any reason to believe that antidiscrimination laws have to operate neutrally to be lawful. Laws banning discrimination against the handicapped don’t ban discrimination against the non-handicapped. The ADEA bans discrimination in employment not based on age, but against people over 40.

          1. “I don’t see any reason to believe that antidiscrimination laws have to operate neutrally to be lawful. Laws banning discrimination against the handicapped don’t ban discrimination against the non-handicapped. The ADEA bans discrimination in employment not based on age, but against people over 40.

            Both those laws are applying the non-discrimination neutrally. There has to be some discussion (as you know) about what constitutes the protected class. A law that says in Texas you may not discriminate against white people, but you may discriminate against black people, would not survive.

            1. The protected class in BDS laws are people, businesses, and institutions who do business with Israel or are affiliated with Israel.

              1. But note, these are much narrower laws, because there is no private right of action, no ban on individuals doing whatever discrimination they want. The scope is only that the State government will in essence boycott businesses that boycott people who won’t do business with people who do business with or for Israel (for whatever reason).

                1. Let me clarify that I think the state of Texas is free (constitutionally) to do this sort of thing, although on very different grounds. But if I accept existing jurisprudence, I’m not finding your argument very persuasive.

              2. Right. That’s why it isn’t viewpoint neutral. It is expressing an opinion as to whether the protected class is only people who do business with Israel or are affiliated with Israel. (Why aren’t people who boycott Israel a protected class?)

                If the law said you have to affirm an oath that you did not boycott any customers on the basis of their national origin, that would be a different story.

                Could you answer my hypothetical? Do you think a Texas law that said private discrimination against white people is permissible but not against black people, would pass constitutional muster?

                1. That would be race discrimination, subject to strict scrutiny. Affirmative action laws to give members of minority groups what are at least claimed to be protections against discrimination that aren’t given to whites, so this isn’t nearly as outrageous as you seem to believe.

                  1. Why do you assume I don’t find affirmative action laws outrageous? Anyway, AA has nothing to do with this. If anything, your position supports AA laws.

                    Last point on that. I’m willing to assume good faith by people who enact AA that it is intended as an honest attempt to help a class of people who have been subjected to past discrimination and are still suffering today. (I think it does more harm than good to that group, but whatever.) The US today is not anti-Israel. It is pro-Israel. The overwhelming majority view (as evidenced by anti-BDS laws) is that people who are opposed to Israel are the bad minority needing crushing, and Israeli-supporters are not under serious discrimination. I don’t know how anyone can look at the bipartisan support for Israel in the US, and conclude that the state is out to get Israelis so much that we need special protection of, er scratch that, state-sponsored censor of people who are insufficiently pro-Israel.

                  2. In California, whites are a minority (there are more hispanics than whites).

                    How about a law here saying you can’t discriminate against whites, that doesn’t ban discrimination against other races (whether minority or not)?

                2. My argument here isn’t based on precedent. The argument based on precedent is that FAIR v. Rumsfeld controls, and the plaintiffs have no case. My argument instead is that if you somehow accept the plaintiffs claim that FAIR is not controlling, they are still going to lose because if courts accepted the notion that boycotts/failure to deal are “speech,” then they are going to be faced with a slew of very hard to distinguish as-applied challenges to public accommodations and other antidiscrimination laws. Saying “but I think other refusal to deal prohibitions are more important than this one”, which is basically the ACLU’s argument, is not a winner.

                  1. The novel argument, as you note, is the viewpoint issue.

          2. I don’t think it’s safe to predict that at all.

            The ADA is actually structured as generally applicable, “on the basis of disability”, like “on the basis of race”, is generally applicable language. The ADEA is not a public accommodations law.

            1. You cannot bring a claim under the ADA saying, “They discriminated against me for not having a disability.”

              The ADEA is an anti-discrimination statute; the fact that it applies to employment rather than public accommodations doesn’t really seem important for this discussion.

      2. If I boycott fur does that make me anti-Eskimo?

        1. According to what seems to be the prevailing theory, that if you, e.g., boycott same-sex weddings, you are boycotting gays because homosexuality is so closely associated with same-sex marriage, and you are therefor discriminating against gays, I’d say that Israel etc is sufficiently associated with Jews for the same dynamic to prevail. I’m not a fan of this theory, but if we are going to use it, I object to picking and choosing depending on whether the ACLU (which takes the opposite position on same-sex marriage boycotts as on Israel boycotts) happens to like the underlying cause.

          1. I’m not the ACLU, and I take the opposing position that denial of service to a SSM should be legal.

          2. I’d say that Israel etc is sufficiently associated with Jews for the same dynamic to prevail.

            Wouldn’t that conclusion imply anti-BDS laws discriminate in favor of Jews, and therefore are impermissible religious discrimination?

            1. Only if laws banning discrimination are considered to be law discriminating in favor the group protected, which they are not.

              1. A law which banned discrimination against whites favors whites, and you said above that would be impermissible race discrimination. Of course, that law could be viewed as disfavoring blacks. But, so could anti-BDS laws be viewed as disfavoring Muslims (or Arabs).

        2. We wouldn’t imagine that it did unless you boycotted fur sold by Eskimos while happily purchasing fur from non-Eskimos. That would be an obvious and fair inference, wouldn’t it?

      3. “I think that anti-BDS legislation, which protects people from antisemitism, is far more morally praiseworthy that many public accommodations that protect, e.g., motorcycle gang members (Minnesota) or unmarried heterosexual couples (several states).”

        By all means, please explain the moral basis for this assertion.

        1. You need me to explain to you why acting on prejudice against Jews is more morally culpable than acting on prejudice against members of motorcycle gangs?

          1. I reject your framing that BDS necessarily involves “prejudice against Jews”. But let’s talk through that.

            If you’re talking about prejudice against people who follow the Jewish religion, the decision to follow any religion does not afford the chooser any special moral status (unless you are saying that since Jews follow the one true God, they’re chosen, or some shit). “I decide to be Jewish” is, at best, as morally innocent as “I decide to join a motorcycle gang”. Both are of the same moral kind as “I like green socks, the best”. Which is to say they deserve no special condemnation or buttressing; they’re just morally irrelevant choices. I’m not aware of any moral theory that would distinguish between those choices, at least as far as morality is concerned. So I don’t know why you think choosing the Jewish God as the one to believe entitles you to special pleading over motorcyclists. Why don’t you just fucking explain to me why picking that particular religion makes that person more entitled to moral protection than any other arbitrary choice?

            Now, in the case of “unmarried heterosexual couples” the first part (“unmarried”) is also a morally irrelevant choice, so for the same reasons you should develop a moral theory why “choosing Judaism” is more morally protected than “choosing not to marry”. As for the “heterosexual” part, if you assume that has a biological basis and is an immutable trait, the moral argument for special protections for the class of “heterosexuals” is stronger than the case for the class “choosing Jewish” since the former is not something that a person can even arguably be blamed for doing.

            If you meant something like ethnic Jews, sure, the immutable trait of being “ethnically Jewish” does deserve more moral consideration given its immutability. But, back to your fucked up framing, deciding not to do business with people who trade with Israel has as much to do with prejudice against ethnic Jews as an anti-apartheid boycott has to do with prejudice against South Africans who are white.

    2. That’s because you’re misreading the argument. The comparison is between the 1st amendment free speech defenses, not the laws themselves.

      The argument being made is that “It’s my right, under the first amendment, to boycott whoever I and whatever I want”

      Is that true? If it’s true, then, a whole bunch of different laws would fall. Those laws may or may not be comparable, but they would all fall.

      1. “ The argument being made is that “It’s my right, under the first amendment, to boycott whoever I and whatever I want””

        Straw men are useful in the field, but not so much in debate.

        1. It’s not a strawman. If a Boycott is just “speech”, then you have freedom of speech to say whatever you want. Don’t you?

          1. “If a piece of cardboard can ever be speech, then the government can never regulate anything cardboard“ – Your nonsense logic.

            1. As Honest Abe observed, you can call a dog’s tail a leg if you want to, but that will not change the fact that dog’s do not have five legs.

              Cardboard can never be speech, though writings on cardboard may enjoy the protections afforded to speech. Hope that helps.

      2. You’re making the assumption there is no legal difference between government, business, and people.

      3. “The argument being made is that “It’s my right, under the first amendment, to boycott whoever I and whatever I want”…”

        That’s not the argument. Let me help make it clearer.

        If California passed a law that said the state would no longer contract with anybody unless they promised never to boycott against people who identify politically with the Democratic party, would that be permissible, in your view? It can be true that the state can punish boycotts, while also being true that the state cannot use viewpoint-discrimination in how it decides who to punish for boycotting.

        1. “If California passed a law that said the state would no longer contract with anybody unless they promised never to boycott against people who identify politically with the Democratic party, would that be permissible, in your view? ”

          Yes, that would be permissible in my view.

          1. And Texas could do the same regarding Republicans? Or Minnesota could do this regarding boycotting BDS-supporters?

            1. Sure.

          2. Just to be clear, the BDS laws apply to businesses that want to contract with the state. An individual could boycott Israel all she wants, and she will still be eligible for Medicaid, be able to use the public park, etc. Just to clear up any ambiguities around individual independent contractors, the Texas law (and some others, I think) have been amended to only apply to businesses of a certain size.

            1. All fair points about the current law.

        2. If California passed a law that said the state would no longer contract with anybody unless they promised never to boycott against people who identify politically with the Democratic party, would that be permissible, in your view?

          No, because that law discriminates on the basis of political party. In contrast, anti-BDS laws discriminates in favor if Israel, which is permissible.

          1. “No, because that law discriminates on the basis of political party. ”

            Eehhh. Not really. Technically, it prevents discrimination on the basis of a political party. It just selects out the political party.

            Now, discrimination based on politics is allowed in most states. Technically California bans that, but only in regards to employers.

            (2) “controlling or directing, or tending to control or direct the political activities or affiliations of employees.”

            1. Selecting out the political party is akin selecting whites as the only race protected in an anti-discrimination law.

              The states can permit private parties to discriminate on the basis of political party, but no government may discriminate on the basis of political party.

              1. So, just curious, “why” can’t government discriminate this way (IE, protecting one party), on the basis of political party? Under what law or rule?

                1. When the government favors a political party, it impacts voting rights. For example, if a law gave a tax break only to Republicans, that would provide an electoral advantage to Republicans.

    3. Of course anti-discrimination laws can’t apply only to whites, or that would violate the 14th Amendment because it discriminates on the basis of race. In contrast, while anti-BDS laws apply to a particular country, they do not discriminate on the basis of a person’s national origin. Government policy that favors one country over another, is unremarkably constitutionally-permitted discrimination.

  3. I tend to think boycotts are stupid as a political tool. Maybe 75 years ago there was enough localized economic activity to use a boycott to influence change. These days a few million bucks is just a nano-drop in the bucket in the global economy. I say spare us all the gnashing of teeth and just let them do what they want.

    1. Anti-Semitism (and that’s what BDS really is, make no mistake about it) needs to be squished early and quickly.

      1. By force of law? There is a double standard if one is to support legislating against anti-Semitic speech, but not hate-speech in general.

        1. BDS isn’t “speech” but is “action”.

          1. Choosing not to do business with someone is unquestionably speech. It may not be speech protected by the 1A, under the legal myth needed to preserve anti-discrimination laws generally, but it’s a type of speech. “I will not do business with you” is also speech.

            1. “Choosing not to do business with someone is unquestionably speech.”

              No it’s not. You’re not trying to convince to adopt your views, you’re trying to get them to do what you want them to do in order to get your business. Which is a perfectly legitimate motive, but it’s not speech.

            2. By its very definition, a boycott deliberately goes beyond speech into action for economic harm. Though this is a signalling, which may be speech, it is also action.

              It’s like saying forcing black people to leave your counter is speech because it communicates disfavor.

            3. A bit of doublespeak there. It’s unquestionably speech, but not speech under 1A….

      2. Quit a few antisemitic yet practicing Jews then.

        1. There is a Judenrat in every generation.

          1. You’re a hateful man, Bob.

            1. It keeps me warm.

              1. At least your movie quotes are on point.

          2. Yeah, boycotting the Likud is about like helping the Nazis.

            1. If you think BDS is about “boycotting Likud,” you need to do some research.

              1. One can quibble about policy versus party, but I’m not sure your view is universally held.
                The Jewish friends and co-workers I have that either support or are lukewarm about it. Some (well, one) is Israeli by birth.
                They all support Israel existing, but don’t like the current treatment of the Palestinians.

                I’m to their right on this – I think Israel has the moral highground against Palestine currently based on the stated goals of the two peoples and governments, though I do think Netanyahu is not helping that fact.

                1. Not all of my Jewish friends and co-workers, of course – see Commenter_XY’s comment below.

                2. “quibble”

                  Likud is not Israel no matter how you slice it.

                  Many American Jews are sadly out of step with the overwhelming majority of their Israeli cousins who [whether via parties led by Bibi or Gantz or Lieberman or Bennett] support the current policies.

                  1. Israel’s current policies are not Israel either.

                    Jews who don’t agree with the current policies in Israel are not somehow bad Jews, nor are they antisemitic. Certainly they are not Judenrats.

                    1. Although several newspapers in reporting on anti-BDS laws stated that BDS seeks to “change Israel’s policies” or “protest the occupation of the West Bank” or some such, in fact the goal of the BDS movement is to protest Israel’s existence, and try to limit its future viability. Not every person who is involved in BDS shares the goal of eliminating Israel, as opposed to protesting this or that, but that just makes them useful idiots for the underlying goals of the movement.

                    2. Here is the website of the U.S. BDS movement. You will note this: “For nearly seventy years, Israel has denied Palestinians their fundamental rights and has refused to comply with international law.” https://bdsmovement.net/what-is-bds

                      Seventy years… going back to Israel’s existence (website needs an update!) Nothing about the West Bank, nothing about 2 states, nothing about Likud. The objection is to Israel, as such.

                    3. I checked with a friend on this, and she said that saying Israel has always oppressed the Palestinians is not the same as arguing that Israel should not exist, nor does it say anything antisemetic about the Jewish People.

                      This is a practicing and active Jew in pretty active dialogue with her faith and community.
                      Bottom line, I think it is pretty overinclusive to call BDS antisemetic.

                    4. It’s nice that you checked with a friend, and they are a bit cagey about it, but if you actually read the website, they want to end Israel’s “settler colonialism.” If you read another page, you will find that they define Israel’s establishment in 1948 as settler colonialism. So, they object to Israel’s existence. Whether you want to call that antisemitic or not, it’s a far cry from what you originally suggested, which is that they object to current Likud policy.

                    5. “The maps that BDS groups publish of the region make clear that they seek Israel’s elimination, depicting a single Palestinian state that extends from the Jordan River to the Mediterranean Sea, with no trace of the Jewish state. BDS co-founder Omar Barghouti, has said publicly that he’s working for Israel’s “euthanasia.” Hatem Bazian — the other major co-founder of BDS in America — has called for an armed struggle, an “intifada,” against the United States and spouted anti-Semitic stereotypes from his pulpit as a lecturer at UC Berkeley.”

                      https://www.huffpost.com/entry/bds-is-continuing-to-spread-hate-and-anti-semitism_b_592dab59e4b075342b52c080

                    6. What part of “Kill the Jews” do American Jews not understand?

        2. There may be 3-4 opinions among the two Jewish lawyers debating that topic. 🙂

        3. There’s nothing impossible about Jews being also being antisemitic, just like you could have Jews be part of the Nazi party. (And yes, there were Jews who would part of the Nazi party in Nazi Germany).

          Using your logic, it was impossible for Nazi Germany to be antisemitic, because there were Jews in the Nazi German government…Which is absurd.

          1. This is deceitful logic. I didn’t say no Jews were antisemetic, I argue that your definition is overinclusive because it sweeps in MANY Jews.

            Lame strawman.

            And offensive overuse of antisemitism. Cheapening it like this is not a good idea.

            1. “Who hates the Jews more than the Jew?” – Henry Miller

            2. No, you implied that BDS can’t be antisemitic because there are some Jews who support it.

              I simply pointed out the absurdity of that statement, using an example which was CLEARLY antisemitic, but was supported by some Jews.

    2. Jimmy, the exact opposite is true — today the company selling pencils to the State of Texas is far more likely to have a division selling something to Israel as well. It’s a real issue with pharmaceuticals. a lot of which do business in Israel (R&D, Manufacturing — as well as sales) — and which sell a LOT to the states via Medicaid.

  4. Public accommodation laws in the US are there to protect the US public from discrimination.

    The anti-BDS laws are there to protect. . . Israel.

    Why is the US protecting a separate, sovereign country at the expense of otherwise legal activity?

    We can boycott German, Chinese, etc firms, just not Israeli firms, so the activity (i.e. boycott), is in itself not illegal.

    1. The primary effect of BDS laws is to protect *Americans* who do business with Israel, or want to study in Israel, or do joint research projects in Israel, or whose national origin is Israeli. Not coincidentally, these people are wildly disproportionately Jews. BDS on campus, for example, has primarily meant “woke” student organizations disinvited Hillel from co-sponsoring events because Hillel is “Zionist,” and faculty trying to prohibit pro-Israel speakers from speaking to primarily Jewish audiences.
      That said, whether you approve of the purpose of the law or not has nothing to do with its constitutionality, and of course we do have sanctions laws that single out particular countries from Americans dealing with them, even in a “reverse boycott” situation (“I really want to show my support for Iran by buying oil from them.”) If the U.S. gov’t can prevent you from dealing with Iran, surely a state gov’t can refuse to contract with a company that declines to deal with people and businesses associated with Israel.
      In other words, it’s not the pro-Israel side here asking for special treatment, it’s the anti-Israel side asking that special rules be applied to them.

      1. In other words, it’s not the pro-Israel side here asking for special treatment, it’s the anti-Israel side asking that special rules be applied to them.

        Let’s see who started this; the pro-Israel side or the anti-Israel side?

        It was the pro side – and now the anti side simply want equality – NOT SPECIAL TREATMENT.

      2. “The primary effect of BDS laws is to protect *Americans* who do business with Israel, or want to study in Israel, or do joint research projects in Israel, or whose national origin is Israeli.”

        What is a “BDS law” in the United States? I thought we were talking about anti-BDS laws? What would a BDS law look like?

        “…and of course we do have sanctions laws that single out particular countries from Americans dealing with them, even in a “reverse boycott” situation…”

        BDS is a country?

        “In other words, it’s not the pro-Israel side here asking for special treatment, it’s the anti-Israel side asking that special rules be applied to them.”

        Risible since we’re talking about an anti-BDS law. Has BDS taken over the state legislatures anywhere in the US?

        “If the U.S. gov’t can prevent you from dealing with Iran, surely a state gov’t can refuse to contract with a company that declines to deal with people and businesses associated with Israel.”

        Why are you so sure? “You can’t do business with Iran.” Ok. I won’t do business with Iran. “I can coerce you into doing business with Iran.” Not ok. “I can condition your state contract participation on you doing business with a foreign country.” What? That’s no the same thing at all. Broccoli mandates, remember?

        1. -““The primary effect of BDS laws is to protect *Americans* who do business with Israel, or want to study in Israel, or do joint research projects in Israel, or whose national origin is Israeli.”
          -What is a “BDS law” in the United States? I thought we were talking about anti-BDS laws? What would a BDS law look like?”

          Does this sort of absurd wordplay make you happy? It’s pretty clear David was talking about anti-BDS laws, and was using shorthand. If you don’t want to comment meaningfully to the conversation, then you don’t need to. But this sort of pretending not to understand is just boorish.

          1. meh meh meh meh boorish. That’s you. That’s what you sound like.

            1. I see. A “Nyah Nyah” response. What are you, 7 years old?

              Just apologize for the trollish wordplay.

      3. The primary effect of BDS laws is to protect *Americans* who do business with Israel, or want to study in Israel, or do joint research projects in Israel, or whose national origin is Israeli.

        Is that really necessary to justify legality or policy? Isn’t “protecting an ally surrounded by unfree nations” sufficient?

  5. Here’s the easy answer: States are prohibited from legislating on foreign policy.

    1. And a boycott, even if anti-Semitic, is targeting a government, not a person.

      1. And a boycott of those who boycott a government is a legitimate exercise of the state’s police power.

        Remember that they are not prohibiting the boycott, only stating that they won’t do business with boycotters….

        1. No. The state does not have the power to exercise view-point based discrimination, ESPECIALLY, when it comes to foreign policy.

          1. This sounds like you are being sarcastic, but I cannot tell.

    2. States have the police power to award (or not award) contracts to whomever they damn well please.

      1. No. States cannot aware contracts to Iran or any other business operating withing a sanctioned government.

  6. Here’s the bottom line: Governments bully people, people do not bully governments. And the Israeli government is bullying the Palestinian people.

    1. And the rockets going over the border in the opposite direction are just irrelevant, for reasons.

      1. That is not to say people don’t bully other people, obviously.

        1. Someone near the top of this thread suggested anti-BDS was anti-Muslim or Arab.

          Are states synonymous with their populations or not?

    2. Your opinion of Israel has nothing to do with the constitutionality of the legislation but, oddly enough, you have basically summarized the ACLU’s legally ridiculous position, which is that every other type of antidiscrimination law is exempt from First Amendment scrutiny because the ACLU likes such laws, but laws banning discrimination against those who deal with Israel are unconstitutional because Israel is a country that people justifiably don’t like. I would be not a single Justice would actually endorse this argument.

      1. The ACLU doesn’t represent me. I take the intellectually honest position that both the SSM cake case and the anti-boycott case should come down on the side of liberty.

  7. The traditional sharp distinction between identity and behavior has been rather muddled of late, By religion on the conservative side, and by homosexuality and transgender issues on the liberal side.

    I think that relaxing the distinction is largely a mistake, because without it the boundaries become whether we (and in practice, that means whether judges) feel really strongly about something. If behavior judges feel strongly about is a permissable source of identity, but not other behavior, that seems to give judges a lot more standardless say over how we are permitted to identify ourselves than if the distinction were maintained.

    But nonetheless, the distinction seems to be something of a losing proposition of late.

  8. It seems to me as a libertarian that the right to refuse to deal, including when that’s discrimination of any kind, is a fundamental and inseparable part of property ownership — and therefore, any law which restricts that right ought to be ruled a 5th Amendment taking.

    1. That’s exactly the “problem.” The courts are not going to interpret the rules so as to make antidiscrimination laws unconstitutional.

      1. “The courts are not going to interpret the rules so as to make antidiscrimination laws unconstitutional.”

        No, they’re going to say that anti-BDS laws are unconstitutional, and anti-discrimination laws are constitutional, under the doctrine of FYTW.

  9. I’m not sure why they think O’Brien helps, unless they can show that the law was motivated by silencing the expressive component of the boycott, instead of protecting boycottees from economic pressure. And based on their brief, it doesn’t sound like they can.

    1. When the Court was considering Dale, a very prominent liberal lawyer told me that the Court would apply O’Brien and the Scouts would lose 9-0 or 8-1. I told him was as wrong as could be, that the Court had never applied O’Brien to a similar case, and that in Hurley not a single Justice even cited O’Brien. He got the 9-0 on the O’Brien issue exactly backwards. But he did go on to be a very high level Obama appointee, so there’s that.

  10. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans

    Is there something missing from this? How can an anti-BDS law, intended to discourage boycotts of Israel, be implicitly antisemitic?

    1. You’re just misreading an inartfully written sentence. He’s saying that the passage of anti-BDS laws is based on the premise that the BDS movement is implicitly antisemitic.

      1. Ah. The “they” refers to BDS’ers, not the laws.

        Thanks.

  11. “”If we have done anything wrong, send your man to see my man, and we’ll fix it up.”

    That is not inherently a bad thing to say, another version I personally have heard as an inspector was “call my man and tell I told him to fix whatever you want fixed.”

    1. You’re typing in the wrong tab, Dr. Ed.

  12. Would anyone care to explain how these anti-boycott laws square with the Dormant Commerce Clause?

    1. For example, can Texas decide to put sanctions on Canada?

  13. Someone who says the United States deserved what it got on 9/11 can fairly be labeled anti-American, though they may be a native-born citizen of the United States, served honorably in its military, sworn no oath of allegiance to another government, taken up arms against the US, etc. By the same token, someone who would deny Israel inclusion among the family of nations (e.g., membership in the UN) and the privileges that brings with it can fairly be counted an antisemite though they may have been born a Jew and never converted to another religion.

    And Sarcastro, with all due respect for your no doubt well-meaning opinion, what you think an “offensive” application of the term “antisemite” is of exceedingly little consequence.

    1. > By the same token, someone who would deny Israel inclusion among the family of nations (e.g., membership in the UN) and the privileges that brings with it

      I may be wrong, but my impression was that most of the BDS movement is not advocating for this. BDS doesn’t mean anti-Israeli statehood, it means not buying stuff from and not investing in Israeli businesses.

      1. You are wrong. The purpose of BDS is to “get Israel to comply with international law.” But if you read the official BDS website, Israel’s existence does not comply with international law.

  14. I’m no fan of either BDS, or anti-BDS laws, but if I understand the analogy Bernstein is trying to make – that anti-BDS laws are like anti-discrimination laws – I don’t think it holds.

    Boycotts are aimed at specific entities – organizations, companies, countries – in an effort to induce them to change their behavior by bringing primarily economic, also maybe social and political, pressure to bear. But the point is that there is an objective – change the behavior.

    Ordinary discrimination doesn’t aim at a change in behavior. It just discriminates. Not serving black customers isn’t going to turn them white. Not eating at a restaurant that doesn’t serve black customers might get the restaurant to change that policy. One is discrimination. One is a boycott.

    1. How is your distinction legally relevant?

      1. It’s relevant to the post because of the parallel Bernstein is trying to draw. As I understand his point a boycott of Israel is analogous to refusing to serve black customers.

        Therefore, anti-BDS laws are the same as anti-discrimination statutes. If anti-discrimination laws are Constitutional then anti-BDS must also be, because they penalize the same sort of behavior.

        My point is that there is a big difference between the two, and they are, contra Bernstein, easy to distinguish. Therefore that argument for the constitutionality of anti-BDS laws does not hold.

        1. Not if you’re rational for “discriminating” is that you want to change behavior. “I won’t provide cakes for same-sex weddings even though that’s considered illegal ‘discrimination based on sexual orientation’ under local law because I want people to stop having same-sex weddings.”

  15. It’s unclear to me why your argument couldn’t be extended to permit laws forcing *all* business owners to promise to not boycott Israel. Or even laws forcing all citizens to promise not to boycott Israel, if this is just economic regulation.

    Similar to others in the thread, I think the direct comparison to anti-discrimination laws are weak. Forcing business owners to sell the same stuff to black and white people is different from forcing people to sign something promising not to avoid buying stuff from Israel.

    Would it be permissible for the government to pass a law forcing business owners to say they won’t boycott Amazon?

    Also forcing someone to sign something gives the impression of compelled speech, even if the effect is equivalent to a ban.

    1. >Similar to others in the thread, I think the direct comparison to anti-discrimination laws are weak. Forcing business owners to sell the same stuff to black and white people is different from forcing people to sign something promising not to avoid buying stuff from Israel.<

      How? Under what principle? What about the more expanded versions which apply to religions, sexuality, and even specific actions that people take (such as wearing a hijab)?

      The problem with public accommodation laws lie at their core. They are, in fact, an extremely heavy handed state intervention that only looks like a light intervention because most businesses want to serve everyone anyways. Remember, most segregation was government enforced. We had no significant time period where segregation laws were repealed but public accommodation laws were not in effect, thus we have little to no evidence they actually do all that much (in the case of race).

      1. We had no significant time period where segregation laws were repealed but public accommodation laws were not in effect, thus we have little to no evidence they actually do all that much (in the case of race).

        Actually, we have tons of evidence. There was plenty of racial discrimination of types and in places where Jim Crow laws did not apply. Employment practices in general were not governed by Jim Crow laws even in the South and the North was not exactly an Eden of racial harmony and tolerance.

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