Now Published: "The First Amendment and Refusals to Deal"

It's part of the University of the Pacific (McGeorge Law School) Law Review symposium on Israel, Palestine, and the First Amendment, and it's based on amicus briefs that I had filed together with Profs. Michael Dorf and Andrew Koppelman. You can read the article here; here's the opening paragraph and the Introduction:

Anti-BDS laws, which bar government contractors from boycotting Israel, are generally constitutional—for the same reason that anti-discrimination laws are generally constitutional: Refusals to deal are, outside some narrow situations, generally unprotected by the First Amendment.

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Forum for Academic & Institutional Rights, and it is the foundation of the wide range of anti-discrimination laws, public accommodation laws, and common carrier laws throughout the nation.

Thus, for instance:

• A limousine driver has no First Amendment right to refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
• A store has no First Amendment right to refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
• An employer in a jurisdiction that bans political affiliation discrimination has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
• An employer that is required to hire employees regardless of union membership has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
• A cab driver who is required to serve all passengers has no First Amendment right to refuse to take people who are visibly carrying Israeli merchandise.

Of course, all these people would have every right to speak out against same-sex weddings, Catholicism, the Democratic Party, unions, and Israel. That would be speech, which is indeed protected by the First Amendment. For this reason, when phrases such as "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" appear in various anti-BDS statutes, courts should read them as covering only commercial conduct such as that listed in the preceding phrases ("refusing to deal with" and "terminating business activities with"), and not extending to advocacy.

But 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, properly crafted anti-BDS statutes—the subjects of this symposium, and of recent debates about boycotts more broadly—are constitutional, as are contracts based on such provisions. And, of course, the logic of this would apply to a wide range of statutes that forbid (or mandate) various kinds of boycotts or other refusals to deal.

The details are in the full article (just 14 pages).