Reason.com

Free Minds & Free Markets

Are Boycotts Protected by the First Amendment?

Only if you like the cause they serve, according to supporters of laws that target the anti-Israel BDS movement

I am not one of those people who keep track of the policies, positions, and practices of every business they deal with, lest they inadvertently lend support to a cause they abhor or undermine one they embrace. Still, I recognize that consumers who invest time and energy in that sort of discrimination see it as an important reflection of their moral values, which to my mind makes it an expressive activity that should be protected by the First Amendment.

The U.S. Supreme Court agrees—up to a point. But as the debate over laws targeting the anti-Israel Boycott, Divestment, and Sanctions (BDS) movement illustrates, it's not clear where that point is.

Half of the states have responded to the BDS movement by boycotting the boycotters, refusing to hire contractors who won't promise not to shun companies that do business in Israel. The Combating BDS Act, a bill introduced in the U.S. Senate last week, aims to protect such laws by eliminating the threat of federal pre-emption.

The American Civil Liberties Union has successfully challenged anti-BDS laws on behalf of a curriculum coach in Kansas and an attorney in Arizona, and last month the Council on American-Islamic Relations filed a similar lawsuit on behalf of a speech pathologist in Texas. The ACLU and CAIR argue that rejecting contractors who refuse to sign an anti-boycott pledge unconstitutionally punishes them for exercising their First Amendment rights.

All three lawsuits rely on a 1982 case in which the Supreme Court said an NAACP 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," was protected by the First Amendment. Last year two federal judges agreed that the BDS movement is constitutionally analogous to the NAACP boycott and issued preliminary injunctions against enforcement of anti-BDS laws in Kansas and Arizona.

As supporters of those statutes point out, the Supreme Court has in other cases upheld laws that punish or prohibit boycotts. Three months before it decided the NAACP case, the Court rejected a First Amendment claim by the International Longshoremen's Association, which illegally exceeded the sanctions imposed by the U.S. government after the Soviet invasion of Afghanistan.

Like the BDS cases, that decision involved international trade. But it also involved federal labor law and what the Court called "the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife."

In 2006 the Supreme Court upheld a law that denied federal funding to law schools that discriminate against military recruiters. But that decision hinged on the Court's conclusion that such policies are not "inherently expressive," which is not something you can credibly say about the BDS movement, whatever else you may think of it.

More directly relevant is a 1984 decision in which the U.S. Court of Appeals for the 7th Circuit upheld a provision of the Export Administration Act that prohibited American companies from answering questions aimed at enforcing the Arab boycott of Israel. The appeals court viewed the speech at issue in that case as purely "commercial," aimed at maximizing profit rather than expressing an opinion. Again, that is not an accurate way to describe the BDS movement.

Opponents of the BDS movement who strive to legally distinguish it from the NAACP's boycott in Mississippi seem to be driven by political sympathy more than constitutional principle. But the same could be said of the ACLU, which only selectively recognizes economic freedom as a tool of self-expression.

If a curriculum coach in Kansas or a lawyer in Arizona has a First Amendment right to support the Palestinian cause by eschewing certain commercial relationships, shouldn't a baker in Colorado or a photographer in New Mexico have a First Amendment right to support traditional marriage through the same peaceful means? When the right to boycott depends on the cause it serves, it is not much of a right.

© Copyright 2018 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Liberty Lover||

    Prostitution is illegal in my state. Second try to learn English, your post is not understandable. Spam sucks.

  • Eddy||

    Wow, looks like Reason censored someone!

  • Quixote||

    And rightly so, if a prostitute was soliciting participants. Clearly the "free speech" baloney we keep hearing about has its limits. That, in fact, is why there is nothing wrong with the government deciding which boycotts are okay and which are impermissible, just as there's nothing wrong with its deciding that "parodies" must be obvious to anyone at all including the most gullible fools, or explicitly marked as such, to be accorded "constitutional" protection. See the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • EscherEnigma||

    More likely, because of the (relatively recent) SOSTA legislation that would make Reason liable for prostitution advertisements.

  • DajjaI||

    Rubio claimed today that the law doesn't prohibit free speech. Indeed the law explicitly states that it should not be construed to prevent free speech. However effectively it does. Because by signing the oath you, if you ever criticize Israel even in a private capacity, you are subjecting yourself to criminal penalties if your company is deemed to 'boycott' Israel. It is very easy to entrap a company. Just get a real or fake Israeli company to request a business transaction, and if it fails for whatever reason, accuse them of 'boycott'. Then use the private statement as 'proof' of intention. It's really a witch hunt. I personally have been harassed and stalked online by Zionists many times because I am an out and proud peace-loving Jew. They have threatened me with various types of legal complications such as for example reporting me to law enforcement for using illegal drugs and accusing me of making threats (all completely preposterous and false). They can be quite vicious and I wouldn't put this kind of scam past them. (I have never been threatened by a Muslim and only a handful of times by Nazis.) Also their quarry is not Muslims as you might expect, but their fellow Jewish business owners who are deemed to be liberal and/or anti-Zionist.

  • JesseAz||

    "Because by signing the oath you, if you ever criticize Israel even in a private capacity, you are subjecting yourself to criminal penalties if your company is deemed to 'boycott' Israel. "

    Lol. Ignorance. It requires active divestment or active policy disallowing interactions with Israel. Private statements font matter. Read the bill next time.

  • DajjaI||

    It requires active divestment or active policy

    Like I said, witch hunt. Top Nazi propagandists were radicalized while sitting in prison under Weimar 'blasphemy' laws intended to protect the Jews from the blood libel. This law will result in the same thing here. #witchhunt #howithappened #neveragain

  • Sevo||

    "Like I said, witch hunt."
    Try leaving the goal posts in one place if you'd like to be taken seriously.

  • DajjaI||

    Like I said, witch hunt. And I am not surprised by how familiar the commentariat here is with the intricacies of this abomination. You are positively salivating. And thank you for this demonstration of the persistence with which the witch hunt will be conducted. Please, don't let me stop you:

  • EscherEnigma||

    We aren't talking about criminal laws, just laws regarding who is eligible for government contracts.

    No one winds up in prison over this.

  • DajjaI||

    Strange how aggressively the 'libertarians' are downplaying the risks of this law. #hmmmmm

  • EscherEnigma||

    Sure, but I hope you're not saying that in reaction to anything I've said, as I am not, and have never claimed to be, a libertarian or Libertarian.

  • Echospinner||

    The implication is what?

    Strange. As if some other factor was there. I got it. Jews again.

    You are not even good at this. Hmmmmm

    Truth is I don't care about the law. Just one more not needed. Israel is doing fine.

  • Echospinner||

    You just blamed Jews for the Holocaust.

    I see right through you Dajjal.

    Yes Julius Streicher, Anton Drexler, Alfred Rosenburg, and then Adolf Hitler came to power because Jews were whining about unfair treatment.

    Where did you learn about the history Dajjal? Was it in the Hebrew school you want to? Where you were forced to watch horror movies. Tell me more.

  • Inigo Montoya||

    So the government now chooses contractors on something as irrelevant as where they stand on Israel? I guess things like competitive bidding and making sure things are done on time and within budget are only of concern to stupid old white men—dinosaurs who actually care about silly taxpayers. What's a few billion in cost overruns when you can be woke A.F. and virtue-signal like there's no tomorrow?

  • Longtobefree||

    How is that fundamentally different from choosing the race and sex of the company owner? Preferences for 'minorities' is well established.

  • DarrenM||

    Or California choosing Contractors base on whether they worked on "The Wall" or not?

  • Social Justice is neither||

    If tossing this means tossing government not choosing contractors based on their stance on gay marriage or other culture war nonsense then that's all good. If instead we only get to choose based on what progressives want, then it's not worth supporting as presently enforced.

    I mean, if you can't discriminate based on Israel divestment policy why should you be able to discriminate based on abortion policy or gay marriage policy or sustainable investment policy.

  • EscherEnigma||

    Seeing as those "dinosaurs" never actually existed, sure.

    Fact is, governments have always considered things beyond the strict merits when deciding who to award a contract to. This isn't new, and pretending it's new is silly.

  • Rockabilly||

    'Boycott' is a totally sexist word

    #BoycottBoycott

  • A Lady of Reason||

    Indeed!!! Change "boycott" to "girlcott"! Gender equality people! ;)

  • Leo Kovalensky II||

    xcott

  • $park¥ The Misanthrope||

    Xircott? Xecott?

  • Dillinger||

    Xscott Fitzgerald. good poet.

  • Gasman||

    Same ignorance as was displayed in the 'niggardly' fiasco.
    Boycott is the last name of a person once subject to a 'boycott', or economic embargo.

  • A Lady of Reason||

    The boycotts seem to be nothing but virtue signaling to me!I think the fuzzy area is, private citizens an boycott whatever they choose to, but it's cases like a professor or institution officially imposing their choice of boycotting on others, such as the professor who wouldn't write the recommendation letter for a student to go study in Israel. Your rights should end where others' begin! Technically within their rights or not, I hardly think it's ethically right!

  • $park¥ The Misanthrope||

    the professor who wouldn't write the recommendation letter for a student to go study in Israel

    Has that right and it should not be infringed upon. The student has the right to take up her case with the governing body. The governing body has the right to fire the professor if they disagree with his position.

  • JesseAz||

    The letter was based on the work and actions of the student. He was writing it for the student. Part of being a professor is mentorship. He was violating his duties due to being an antisemitic piece of shit. The letter wasnt commenting on the good or bad of Israeli policy.

  • $park¥ The Misanthrope||

    The letter was based on the work and actions of the student. He was writing it for the student.

    Irrelevant.

    being an antisemitic piece of shit

    Everyone has that right.

    He was violating his duties

    Then his bosses should fire him.

    The letter wasnt commenting on the good or bad of Israeli policy.

    Irrelevant.

  • EscherEnigma||

    No professor is obligated to write any letters of recommendation. No one has a right to letters of recommendation. A professor refusing to write a letter of recommendation, for any arbitrary reason, is not violating anyone's rights.

    Now, a university may choose to obligate it's professors to write letters of recommendation, but to the best of my knowledge no university has actually chosen to do so.

  • $park¥ The Misanthrope||

    I hardly think it's ethically right!

    That's your problem and not anyone else's.

  • Leo Kovalensky II||

    such as the professor who wouldn't write the recommendation letter for a student to go study in Israel

    Maybe we should force him to bake a cake and write the recommendation in icing?

  • Ken Shultz||

    Who doubts that the things these people want the U.S. to divest from in Israel are the source of our influence? Is there any good reason to believe that as the source of our influence diminishes, the strength of our influence will increase? That's not how the world works. Were it not for the influence these people are trying to withdraw, Israel might have driven the people of Gaza into the sea long ago.

  • Echospinner||

    What crap. If Gaza and Hamas were on the US border shooting rockets and mortars at San Diego there would be no Gaza left to talk about.

  • $park¥ The Misanthrope||

    The ACLU and CAIR argue that rejecting contractors who refuse to sign an anti-boycott pledge unconstitutionally punishes them for exercising their First Amendment rights.

    Here's the problem: the First Amendment guarantees your right to say whatever you want whenever you want. It doesn't grant you the right to a job.

  • Leo Kovalensky II||

    I completely agree with this in the sense of private transactions. It becomes a little more difficult of a question, though, when governments are involved.

    Should government hire/fire contractors based on their personal speech, unrelated to their job at hand? I think it's reasonable to say that the legislature, who holds the power of the purse, should be able to set forth the guidelines for hiring contractors, but making guidelines that restrict individual liberty (like freedom of speech or religion) in order to secure a government job/contract seems to be a line that government shouldn't be able to cross.

  • $park¥ The Misanthrope||

    This is only a problem because the government is an employer. If that stops, the problem disappears.

    (Yes, I understand I'm arguing a principle and not reality)

  • EscherEnigma||

    Should government hire/fire contractors based on their personal speech, unrelated to their job at hand?


    Yes. Personal conduct, even outside of the professional sphere, has always been a considering in hiring/firing and contracting decisions.

    That doesn't stop being true just because it's the government (state or fed) rather then a business that's doing the hiring/firing/contracting.

    This is why all of our non-discrimination laws and policies are actually pretty narrow and targetted to specific enumerated categories that can't be discriminated against, rather then wide-ranging "don't discriminate" commands.

  • JWatts||

    "If a curriculum coach in Kansas or a lawyer in Arizona has a First Amendment right to support the Palestinian cause by eschewing certain commercial relationships, shouldn't a baker in Colorado or a photographer in New Mexico have a First Amendment right to support traditional marriage through the same peaceful means? When the right to boycott depends on the cause it serves, it is not much of a right."

    Precisely this. Personally, I think the individual ought to have freedom of choice in each case. However, I'm pragmatic about the matter as long as it goes one way or the other. But if it's Free speech for one but not the other, then I strenuously object.

  • Eddy||

    Like a commenter said above, when the government seeks a contractor it should look for the best service at the best price. If the contractor has business practices which don't affect the particular contract, then in general these practices should be ignored.

    But making this a 1st Amendment issue? Contractors already are under a lot of restrictions violating the naive principle I stated above. They can't boycott particular races when hiring people, for example.

  • Eddy||

    (At least requiring that contractors not boycott whole classes of employees is relevant to the quality of the company's workforce - whether they're committed to the best workforce. But then there are various affirmative action requirements they also have to comply with, so that a nondiscriminatory company can be disqualified from contracts by failing to meet the pressure for "reverse" discrimination.)

  • $park¥ The Misanthrope||

    Contractors already are under a lot of restrictions violating the naive principle I stated above. They can't boycott particular races when hiring people, for example.

    And those restrictions are stupid too.

  • DarrenM||

    Like a commenter said above, when the government seeks a contractor it should look for the best service at the best price.

    The government *should* place the financial welfare of the citizens it represents first. This includes all those taxpayers than provide it with the funds to waste. Of course, financial responsibility just isn't sexy enough.

  • Longtobefree||

    Help me out here.

    Boycotting Israel is free speech.
    Boycotting BDS is an unconstitutional restriction on free speech.

    Have I got that right?
    Sounds like some speech is more equal.

  • buybuydandavis||

    Boycotting Israel - in this case, private parties
    Boycotting BDS - in this case, government parties

    Yes, the feds are obligated, as the courts have found, to prevent states from punishing private parties for their boycotts.

    But it would be totally legitimate for the feds to prohibit government bodies from engaging in BDS boycotts.

  • ConstitutionalDon||

    I refuse to do business with Israel. Not illegal.
    I refuse to do business with homosexuals. Illegal.

  • Lester224||

    This doesn't make sense Don. You can choose not to spend your money at a business run by homosexuals. That is *not* illegal. What is illegal is to prevent homosexuals from buying things from *you* if you have a store or service that is defined as a "public accomodation".

    If you can refuse to serve homosexuals in your store (if it is defined as a public accommodation), you can also refuse to serve people like Catholics, or Hungarians, or women or ex-military or whatever. That's discrimination and not legal.

  • Jerryskids||

    The U.S. Supreme Court agrees—up to a point.

    I'm going to guess that point is when your boycott starts targeting certain classes of people whose equal rights protection grant them special rights - minorities, women, gays, the handicapped, the religious, the old and the young, etc. The BDSM claims boycotting Israel does not equal religious discrimination because, despite the fact that Israel is a Jewish state, they're not actually targeting Jews, just the country they come from. ("I'm not anti-Semitic, but......") Let's see how that played out amongst these same folks with Trump's travel ban on certain countries and the ensuing lawsuit over the argument that the travel ban was actually targeting Muslims and not the country they came from.

  • $park¥ The Misanthrope||

    Excellent point.

  • Rich||

    the Supreme Court said an NAACP 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," was protected by the First Amendment.

    So, a baker boycott of gay customers aimed at securing "compliance for religious justice" is also so protected?

  • buybuydandavis||

    "boycott of customers"

    +1
    Like it.
    I'll have to remember that.

  • chemjeff radical individualist||

    Yes. Next question.

  • mse326||

    To me this article doesn't talk about the clear reason this law is constitutional. The governments decision on who it does or doesn't do business with is not punishment. The government in the commercial sphere has rights on deciding who in contracts with. Yes the BDS movement is expressive and covered by the First Amendment. But laws saying the government can't and/or won't contract with those individuals is not punishment and therefore doesn't infringe on that right.

  • mse326||

    I should clarify that some actions regarding the BDS movement are expressive but not all. I don't think a decision to sell or not sell is expressive conduct covered by the First. But I also think that the Ninth Amendment contemplates unenumerated rights and one of those is economic freedom that the decision to sell or not falls into.

  • Cloudbuster||

    The government in the commercial sphere has rights

    Governments don't have rights, they have powers, and in this nation, we citizens theoretically get to determine what powers government has and how they exercise them. Government has no "right" to decide who it contracts with.

  • EscherEnigma||

    Government has no "right" to decide who it contracts with.


    In the sense that it's not really a "right to a lawyer", sure.

    But as a simple matter of course, it obviously does. Consider you local DMV. They do a cost-benefit analysis, and decide they can save money by firing their janitors and contracting out cleaning services.

    Unless the relevant authority has mandated their decision process, then that local DMV gets to decide who, of qualified bidders, it awards the contract to.

    So yes. Government has a "right" to decide who it contracts with. Limitations to that "right" are put in place by appropriate authorities (most typically congress, state legislatures, local ordinances, or other appropriate rule and regulation-making authorities). But once all that legislated criteria are met, they're free to award the contract as they choose among the remainder.

  • EscherEnigma||

    There's a difference between being having a right to boycott, and a right to government contracts while boycotting.

    Take the current fuss over adoption agencies. No one has said that those agencies can't discriminate against Jews, Catholics or gays. What people have contested is that those agencies can do so while receiving government contracts.

    It's the same as when Bob Jones University lost federal funding over it's interracial dating policy. It had the freedom to have and enforce such a policy, but the federal government could refuse to fund it for doing so. Similarly, the 2006 case was about the Federal government withholding funding over a policy it didn't like. The law schools had the right to refuse military recruiters. And the Federal government had the right to not fund the schools.

    The 1982 case is irrelevant because there was no government action in there.

    So simply put, yes, you have a right to boycott. But the government is not obligated to ignore your boycott when considering who it contracts with.

  • Dillinger||

    boycott is to (somehow) actively do nothing - how is nothing not protected speech?

  • Lester224||

    Of course you have the right to do what you want with your private or your businesses money by not spending it on on good or services from some place or people you disapprove of.

    However, if you are the only restaurant in your town, you can't decide to prohibit access to it for people from a particular religion or foreign country or sexual orientation. There's a difference between providing public accommodations and spending your money. I'm not commenting on the gay weddingcake business - too much gray in there and I'm not a lawyer.

  • Rob Misek||

    A boycott is an action of aggression intended to coerce.

    If those boycotted are already coercing there is mutual aggression.

    Boycotts by Zionists around the world drove Germany into WW2.

    Israel is a terrorist apartheid state oppressing Palestinians.

  • JonFrum||

    So if I wanted to boycott Jewish owned businesses because I want to express my dislike of Jews, wouldn't that be free speech? Ditto for Black owned businesses? Of is there something in the Constitution that gives someone the power to decide what speech is free, and who is free to say it?

  • EscherEnigma||

    So if I wanted to boycott Jewish owned businesses because I want to express my dislike of Jews, wouldn't that be free speech?


    Yep.

    Ditto for Black owned businesses?


    Yep.

    is there something in the Constitution that gives someone the power to decide what speech is free, and who is free to say it?


    Yep. That "someone" is the SCOTUS.

    That said, you seem to be making the same mistake as Sullum.

    Freedom of Speech says you are free to boycott whoever you like.

    And Freedom of Associations says employers and clients are free to look at your boycotts when they consider doing business with you.

    Exceptions to that Freedom of Association are explictly enumerated in statute and ordinances, the most famous being the Civil Rights Act (1964). Examples of such enumerated exceptions are race, religion, ethnicity, sex and national origin.

    So to put it simply... you have your Free Speech and they have Free Association. What you do not have is entitlement to government contracts.

  • Seth Halpern||

    Of course there's a right to refuse to do business with someone with whom you politically disagree. You just don't have a right to be rewarded for it by anyone either, including the government. But as long as the state doesn't put you in jail, confiscate your property, deny you the right to look for a job, etc. you have nothing to complain about.


    No doubt there are gray areas which will accumulate billable hours for otherwise idle lawyers.


    The obvious problem with politically motivated state action like this is not that it infringes on anybody's constitutional rights but that is a double edged sword liable to be brandished by any faction that can muster a legislative majority. As such it is a problematic policy precedent.

  • Echospinner||

    Whenever I hear about these BDS idiots I always make an effort to buy more Israeli stuff.

    I have a nice bottle of Yardin red wine from there. Israeli wines have gotten very good. Gonna drink that and buy some more next time I go to the store. They also have some food items there from Israel I like.

    I am looking into making some changes in my retirement account Teva pharm stock is looking good. If it is good enough for Warren Buffet I am interested.

    BDS people should check their medicine cabinets, and the apps on their phones, Intel chips in computers and some other things.

    Good thing the people in Africa don't feel the way they do. Israel is helping them with new technology to improve crop yield and water management, food being important. https://tinyurl.com/yccxwgoy

  • Barry Gold||

    ISTM that anti-BDS pledges of this sort do NOT pass the "strict scrutiny" standard: counteracting BDS's political lies is NOT a compelling interest, and the law is not the "least restrictive" way.

    But perhaps a less restrictive law might be constitutional. For example:

    + you are free to spend your own money on any cause you like. That includes any profit you might make on your business dealings with the government.
    + in your personal life you are free to do business with who you will, and to withhold your business from anybody you disapprove of.
    + in fulfilling your contract with (government agency), you must pledge NOT to discriminate in ways that (government agency) disapproves of.

    In this case, that means the teacher would be free to boycott Israel (and/or products/services produced in arguably illegal settlements) for her personal use, or in any use outside her work with the school system. But when purchasing goods and services to support her work with the school system, she would have to refrain from the boycott.

    Would that be constitutional? Would it help?

    NOTE: I am a Jew and (in general) a supporter of Israel. I have severe doubts about the current settlement policy, but not so much that I would engage in or support a boycott. And I consider the BDS movement to be largely based on lies and to be a disguised form of anti-semitism. Nonetheless, the First Amendment demands that they be free to spout those lies and to engage in boycotts if they so choose.

  • Rob Misek||

    "You must pledge" too funny.

    You chant the Kol Nidre.

  • FreeRadical||

    What a strange use of the word "they" in the first sentence...

  • Solar batteries||

    Hey, is there any good reason to believe that as the source of our influence diminishes, the strength of our influence will increase?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online