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.

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.

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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.