Do Anti-BDS Laws Restrict Speech?

The line between commercial decisions and advocacy is not as clear as opponents of anti-Israel boycotts suggest.


Two months after the journalist Abby Martin agreed to give the main address at George Southern University's 2020 International Critical Media Literacy Conference, she was disinvited because she refused to sign a state-mandated declaration that she was not "engaged in" a "boycott of Israel" and would refrain from doing so for the duration of her contract with the university. For Martin, a harsh critic of Israel who supports the Boycott, Divestment, and Sanctions (BDS) movement, that pledge was untrue and unacceptable.

It was also unconstitutional, according to a federal judge who last week allowed Martin's lawsuit against university officials to proceed. The case illustrates how the anti-BDS laws and policies that most states have adopted impinge on expressive activities that the Supreme Court has said are protected by the First Amendment.

"Martin's advocacy of a boycott of Israel constitutes protected activity under the First Amendment," U.S. District Judge Mark Cohen concluded. He added that Georgia's 2016 anti-BDS law, which applies to all state contractors, "burdens Martin's speech and is not narrowly tailored to further a substantial state interest," as required by the "strict scrutiny" test that applies to content-based speech restrictions.

"The certification that one is not engaged in a boycott of Israel is no different than requiring a person to espouse certain political beliefs or to engage in certain political associations," Cohen wrote. "The Supreme Court has found similar requirements to be unconstitutional on their face."

Defenders of laws like Georgia's argue that they do not target advocacy but instead restrict the economic decisions of state contractors. According to this view, legislators are merely responding to the anti-Israel boycott with a boycott of their own.

That take is hard to reconcile with the language of Georgia's statute. Like many other states, Georgia defines "a boycott of Israel" to include not only the choice to eschew certain transactions but also "other actions that are intended to limit commercial relations with Israel or individuals or companies doing business in Israel or in Israeli-controlled territories."

The law does not define "other actions," but they plausibly include urging others to protest the Israeli government's treatment of Palestinians by participating in an anti-Israel boycott, something Martin frequently does. Whatever you may think about the ethics or wisdom of that strategy (I question both), such advocacy is indisputably protected by the First Amendment.

The constitutional defense of anti-BDS laws also sits uneasily with the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware, which dealt with a boycott of white merchants in Claiborne County, Mississippi, aimed at securing "compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice." The Court held that "the nonviolent elements of petitioners' activities"—which, contrary to the reading preferred by supporters of anti-BDS laws, seemingly would include voluntary consumer decisions as well as peaceful picketing and other forms of advocacy—"are entitled to the protection of the First Amendment."

Federal judges in Arizona, Kansas, and Texas have agreed with Cohen that requiring state contractors to sign pledges similar to the one Martin rejected violates the First Amendment. While federal appeals courts vacated the Arizona and Texas decisions, they did so because of legislative changes that exempted the plaintiffs from the pledge requirement, rendering the cases moot.

In 2019, a federal judge in Arkansas upheld that state's anti-BDS law, concluding that the phrase "other actions…intended to limit commercial relations with Israel" refers to "commercial conduct," not speech. This year the U.S. Court of Appeals for the 8th Circuit disagreed, reading the statute as requiring government contractors to "limit their support and promotion of boycotts" as well as refrain from directly participating in them.

The 8th Circuit concluded that the Arkansas law "restricts government contractors' ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne." Even if those activities don't include politically motivated economic decisions, they surely include peaceful advocacy of such choices.

© Copyright 2021 by Creators Syndicate Inc.

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  1. I look forward to more articles like this from Sullum about journalists sticking up for their integrity by refusing to agree with certain political narratives.

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  2. The description of the outcome of the case offered here by Sullum is completely misleading and inaccurate. The court (Mark H. Cohen, US District Judge) dismissed the lawsuit and the claim by Martin that her right to freedom of speech had been curtailed. It also dismissed the strained legal basis of her argument.
    I recommend that people read the decision itself and not take seriously Sullum’s misrepresentation.

    1. Sheesh, talk about misleading…the Judge did NOT fully dismiss the lawsuit.

      He only dismissed three Plaintiffs in their INDIVIDUAL capacity.

      Otherwise, the lawsuit is still open.

      For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss for Failure to State a Claim [Doc. 37] is GRANTED IN PART and DENIED IN PART. Defendants’ Motion is GRANTED with respect to Martin’s claims against Overstreet, Blitch, and Lensch in their individual capacities, and those Defendants are DISMISSED. Defendants’ Motion is otherwise DENIED.

    2. Liar. I read the decision. Anyone else who does will see that you lie.

  3. Gotta love how not letting taxpayer money pay for speech is censorship but actual censorship isn’t censorship. “Reason”, indeed.

    1. Martin’s participation in the conference did not/would not have involved her advocating BDS (that’s not what it was about). Martin objected to the pledge’s limiting ALL her activities, at the conference or elsewhere, for ever (and not just in Georgia, either).
      It’s called extraterritoriality, and yes, Israel DOES make laws that govern you, even if you’ve never set foot in Israel. Just ask them.

  4. >>”Martin’s advocacy of a boycott of Israel constitutes protected activity under the First Amendment,”

    required US District Court Judge lol

    1. I really don’t get your terse comment here, Dillinger.
      Would you elaborate a little for me and the rest of the unimaginative?

  5. Not giving taxdollars to a viewpoint is not censorship and not supporting Boycott Divest Sanction (BDS) does not equal supporting Apartheid because Israel is not an Apartheid State.

    Israel is a Secular nation founded by Secular Zionists of Jewish heritage which welcomes people of all religions and none. (Zionism has it’s own entry in The Encyclopedia of Unbelief by the late Gordon Stein.)

    There are Jews, Christians, Muslims, Druze, Buddhists (from Southeast Asian “boat people” who immigrated,) and the Ba’hai Universal House of Justice is in Haifa, Israel. Some of the greatest Secular minds come from Jewish heritage as well.

    Israel has people from all over the world and is 20% Arabic Citizens, who all can have private sector jobs and businesses, and can serve in the Israeli Knesset, the Judiciary, the Civil Service, the Military, and Intelligence. (Israel wouldn’t be where it is today without Arabic intel agents of the Druze religion, whose silence about their creed helps them move easily between nations and cultures.) Israeli official documents and road signs are all in three official languages: Hebrew, Arabic, and English. Israel also has legaal equality for women and LGBTQ+ citizens.

    Also, Israel has free, searching, and critical media who point out injustices whenever they happen and make Israel an open book to the whole wotld.

    However, if BDS-ers still want to boycott and divest Israel, they are absolutely free to do so and thereby boycott themselves out of making their own yummy flavors of soda with SodaStream, a company that also employs Arabs from the Palestinian Territories. The boycotters are also free to boycott themselves out of the Information Age, and to boycott themselves out of prospective cures for Cancer, HIV/AIDS, and other dangerous diseases.

    (Also, when you think about it, if you sell off stocks in a firm, doesn’t that mean someone else is buying? How is that hurting anybody?)

    If BDS-ers put so much as a fraction of their energy into promoting peace and freedom for all as they do into promoting hatred of one little nation of all the nations with rotten things going on, they might get actually get something good done.

    1. If only we stopped sending billions in theft overseas, a libertarian can dream.

      1. True, but those billions go to nations all over the world and to the EU, NATO, SEATO, CENTO, and the United Nations, not just to Israel.

        And billions more in oil revenues are coerced out of U.S. consumers because U.S. energy policies forbid the U.S. energy independence and make us beholden to Islamofascist petro regimes in Saudi Arabia and Iran, as well as other scummy OPEC regimes.

        Many other pro-Israeli voices have differing opinions opposed to the present foreign aid status quo as well, so you are not alone.

    2. Every Zionist is a liar, thief, and murderer. Forcing me to give them Aid and Comfort is a sin that cries out to heaven

    3. Btw Israel is exporting some excellent wines these days. Yarden from the golan heights can be found in many supermarkets.

  6. Telling someone they can’t support at talk about their shitty ideology raises my hackles.

    I say let everyone know who these bigoted, anti-Semitic, Jew haters are and then mock them for being on the same side as Nazis.

    1. Very true. Banning expressions of bigotry is really providing bigots with camouflage.

      And banning private individuals who accept no subsidies or government contracts from discriminating on any basis shields bigots from the negative economic consequences of their acts and puts excluded minorities in places where they aren’t wanted and cannot thrive.

      Freedom of association and no government picking of winners and losers is like the pin-spotter of society. It makes sure everyone gets where they need to be and is better off.

  7. You’re going to bake that cake, own nothing and love it, but we will give you government contracts and taxpayer dollars and be viewpoint neutral in doing so because forcing individuals to pay for your bigotry is the American way.

  8. Does this same reasoning apply for bakers not discriminating in everyday sales but not wanting to be participants in activities against their religious beliefs?

  9. Even if the boycotts themselves (decisions not to buy Israeli exports) aren’t speech, the act of signing a public declaration that “I don’t boycott Israel” surely is speech, and gov’t can’t compel speech.

  10. Let them have their hissy fit.

    Israel is reopening everything with a Covid rate in the low double digits now having the most successful vaccination program in the world. Goldman Sachs is predicting a 7.5% growth rate this year. There are dozens of Israeli stocks on the NYSE. I just saw an article about 10 Israeli tech startups now based in NYC which have become official unicorns valued at over $1 billion each.

    Just ignore these insignificant BDS idiots. Israel is stronger than ever.

    1. Agreed. Attacking the boycott is probably more help to the boycott. It elevates attention given it.

    2. One thing I find most interesting and entertaining about Israel is that their commodities market includes pork bellies. Truly, Israel is an exemplar of inclusion and modernity and not at all bigoted or chauvinistic as the BDSers make them out to be.

      1. You won’t find much pork there but the immigrants from Russia and Eastern Europe love it so it is there. Also every bodega has a shelf with cheap Russian vodka.

        Food is fun there because people have come from all over the world.

        People get the wrong impression because they just see what is on TV. As if all you knew about America was from seeing the Portland riots, horned lunatics storming the capitol, and police killing unarmed civilians.

  11. I am not boycotting Israel. Plan on vacationing there in ’23 but would not sign a pledge stating I am not boycotting. That is just stupid immature ceremonial drivel.

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