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Everyone is Misreporting the Texas BDS Lawsuit

No, a Texas school district did not require speech pathologist Bahia Amawi to sign a "pro-Israel oath," nor even to promise not to personally boycott Israel.

Speech pathologist Bahia Amawi, who works as a contractor for the Pflugerville Independent School District in Texas, has filed a lawsuit claiming that an anti-boycott-of-Israel pledge she was asked to sign violates her First Amendment right to freedom of speech. This was reported first by Glenn Greenwald at the Intercept, who set the tone for the media coverage by claiming, in his typical exaggerated and dishonest fashion, that the lawsuit arose after Amawi "refused to sign an oath vowing that she 'does not' and 'will not' engage in a boycott of Israel or 'otherwise tak[e] any action that is intended to inflict economic harm' on that foreign nation." (Greenwald's headline is even more misleading, and demagogic in a way that undoubtedly appeals to anti-Semites, claiming that Ms. Amawi was required to sign a "pro-Israel oath.")

There are a lot of things I could say about the law and the lawsuit, but I have some time constraints, so I will just explain why Greenwald's take, repeated ingenuously by reporters apparently too lazy to look up the actual text of the underlying law and what Ms. Amawi was asked to sign, is wrong.

Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just like local governments require contractors to certify that they adhere to many other state laws, such as anti-discrimination laws and financial propriety laws, they also must certify, in compliance with state law, that their business does not boycott Israel.

Here is the specific language Ms. Amawi was asked to sign (see appendix A):

Pursuant to Section 2270.001 of Texas Government Code, the Contractor affirms that it: 1. Does not currently boycott Israel; and 2. Will not boycott Israel during the term of the contract Pursuant to Section 2270.001 of Texas Government Code:

  1. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes;and
  2. "Company" means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.

Note that, consistent with the language and obvious intent of the law (see the text here, it's even titled "PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL"), the school district certification applies to the business, "it," not the individual "she." Contrary to what I've been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel.

Briefly on the First Amendment issue, it's no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group. [Clarification: "it" means the First Amendment analysis. There are obvious moral, practical, historical, and other differences between boycotting Israel and boycotting members of American minority groups; those differences just aren't constitutionally salient.] The sole proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can't engage in action that the state disapproves of. Supreme Court precedent, mostly to my chagrin, seems rather clear that this is constitutional, and that the protected class in question need not be an individual or minority group--in Rumsfeld v. FAIR, the Court held that the law school plaintiffs had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters.

In short, this story is being widely misreported, the hysterical claims that Amawi is being forced to sign a pro-Israel pledge or personally do or not do anything in particular regarding Israel outside the context of her business are false, and the First Amendment lawsuit will almost certainly lose. Moreover, it's nearly impossible to think of a way in which Ms. Amawi's speech pathology business would ever have an opportunity to in any way boycott or otherwise economically harm Israel, rendering this pure political theater.

*Other localities make this even clearer. The City of Waco's standard contract, for example, states: "CERTIFICATION REQUIRED BY TEXAS GOVERNMENT CODE SECTION 2270.001 By signing below, Company hereby certifies the following: 1. Company does not boycott Israel; and 2. Company will not boycott Israel during the term of the contract."

UPDATE: Just as I was posting this, a friend of mine posted on Facebook that "individual school teachers are being required to attest that they will not personally boycott Israel as private citizens, even when they are not at work." I can easily see how he thought that given the media's coverage of the lawsuit, and it's yet another example of why one should never, ever trust the media take on a controversy without confirming the original sources. I do it myself sometimes, and generally regret it.

FURTHER UPDATE: Judging from my social media feed, lots of non-lawyers seem to be under the mistaken impression that certain groups that are protected by civil rights law are so protected because they are "protected classes" under the Constitution. Nope. The Constitution does not ban or provide any remedy for private discrimination (or boycott if you prefer) against any group. If blacks, or Jews, or women, or gays, or Republicans, or whomever receive protection from private discrimination in the United States, it's for one reason, and one reason only: because a legislature at whichever level of government chose to pass legislation protecting a category from discrimination. Thus, for example, there is nothing legally anomalous about Texas protecting Israel from (what's seen as) a discriminatory boycott, but not protecting gay people from employment discrimination based on sexual orientation, because supporting Israel is more popular in Texas than supporting employment rights for gays.

Once you give government the authority to ban private discrimination (and remember, discrimination in housing, employment, etc., is a subset of "boycott"), and you weaken constitutional barriers to such legislation, the legislation will inevitably apply to whomever can get support of the legislature. Lest readers think I'm just reasoning backwards to somehow justify laws related to Israel, I will note that I wrote about this in my 2003 book, You Can't Say That!:

The concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? The U.S. Department of Education has proposed that using such tests in college admissions be considered discrimination against groups that get below-average scores. Is a credit card company denying applications to the non-creditworthy? That's discrimination based on financial status. (Sound absurd? Tell it to the New Zealand Human Rights Commission, a body modeled after American civil rights enforcement agencies, which has determined that refusing service on credit to a customer who is unemployed, has no credit card, earns less than $10,000 (approximately $5,500 U.S.) a year, and does not own a home is illegal discrimination on the grounds of employment status.) Is an employer hiring only the best qualified candidates? Well, that might be discrimination against everyone else!

The obvious retort from exasperated antidiscrimination activists is that only laws prohibiting "real" discrimination should receive constitutional exemption. Legislatures and courts should not allow the definition of discrimination to expand beyond what is reasonable. The problem is, of course, that there is no consensus about what constitutes "real" discrimination, nor does there appear to be any principled definition that legislatures have followed. What counts as discrimination will always depend on which interest groups have the power to influence legislatures to define their particular goals as antidiscrimination goals, and not on any objective definition of discrimination. [And note, BDS IS literally discrimination against Israel.]

Already, definitions of discrimination have proven extremely tractable. Some define discrimination as treating the alike unequally based on invidious preferences, but, even outside the controversial area of affirmative action preferences, antidiscrimination law does not always follow this definition. The Americans With Disabilities Act (ADA) defines discrimination not only as the unwillingness to treat the disabled and nondisabled alike, but also as the unwillingness make "reasonable accommodations" for the disabled. In the first enforcement action under the ADA, the government ordered a company to pay for a full-time sign translator for a hearing-impaired student in its review class for the CPA exam, even though the interpreter cost far more than the student's tuition. Undertaking this measure was obviously not treating the hearing impaired student just like everybody else.

Similarly, Title VII of the 1964 Civil Rights Act's ban on discrimination on the basis of religion actually mandates preferential treatment for religious employees. The statute requires that employers accommodate the religious beliefs and observances of their employees, unless doing so would cause the employer "undue hardship." Some hardship to the employer, which in economic terms constitutes a subsidy to the religious employee, is mandated where necessary. If failure to give members of a group a subsidy constitutes discrimination, then just about any law can be defined as an antidiscrimination statute that is potentially exempt from constitutional limitations. In short, exempting antidiscrimination laws from the civil liberties protections manifested in the Constitution might destroy those protections.

As a libertarian, I'm sympathetic that there generally should be a right to boycott, even in the context of government contracting. What I am not sympathetic to, however, is the notion that we should expand antidiscrimination laws and contract constitutional restraints on such laws until, and only until, someone figures out that they could apply these laws to causes and institutions the left doesn't like, such as the military (see Rumsfeld v. FAIR) or Israel, at which time we suddenly invent a broad First Amendment right to boycott. That, in essence, is the position the ACLU has taken for the past twenty years or so, and at best it's wildly optimistic about how politics actually works, and at worst it's simply intellectually dishonest. The Supreme Court certainly didn't buy it in FAIR.

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  • TwelveInchPianist||

    Why would a sole proprietorship have a different set of first amendment rights than someone acting in their capacity as a private citizen?

  • David Bernstein||

    You have the right not to invite a person to dinner at your home based on his or her race. You do not have the right to discriminate based on race if you own a restaurant. Libertarians tend to object to this, but this is a well-recognized, established distinction in American law, which the Texas law follows.

  • epsilon given||

    And your point is?

    The problem with each and every one of those issues is NOT one of private discrimination -- it's one of PUBLICLY ENFORCED discrimination. Enforcing anti-discrimination is just as evil as forcing discrimination.

    I personally think same-sex marriage is icky, and shouldn't exist. Do you know what's even *more* icky, though? Having to go to the Government to get a special permission slip, called a "marriage license", to get married. I would humbly propose that we would be FAR better off if we got rid of marriage licenses altogether, and replaced them with contracts between couples that have the full force of law behind them.

    As much as I find same-sex marriage icky, I couldn't care less if they go and write a contract between themselves, for purposes of inheritance and other standard things (such as hospital visitation rights*) long as I'm NOT FORCED to participate in any ceremony they wish to concoct, to celebrate their vile behavior.

    * I have no idea why this was/is even a problem, above and beyond the hospitals probably being a little too stringent with HIPPA laws. I should be able to declare ANYONE to be privileged to visit me in the hospital -- and I shouldn't have to be married to that person to declare that privilege!

  • James Pollock||

    "I personally think same-sex marriage is icky, and shouldn't exist. Do you know what's even *more* icky, though? Having to go to the Government to get a special permission slip, called a "marriage license", to get married."

    Then don't. Go to literally anyone else. Go to NOBODY else, and just claim to be "married". Done!

    Just don't try to take your "marriage" and use it to obtain anything from the government, and you'll be fine. It works for the fundamentalist "Mormons", and it'll work for you.

  • newshutz||

    John Galt Jr is another sock of the hihnsane one that infests Reason. It is best to ignore him.

  • TwelveInchPianist||

    As my home is not a place of public accommodation, no law prevents me from discriminating in who I invite to dinner. It's certainly not clear that I have a right to engage in such discrimination, or to what extent any such right comes from the first amendment. Do I have a first amendment right to discriminate in who I employ, or who I make contracts with, if I am not running a business?

  • TwelveInchPianist||

    ISTM that the action/speech distinction is a much better argument.

  • David Bernstein||

    Both are relevant. You likely have a right of intimate associate to decide whom to invite to dinner. The law requires you to be a place of public accommodation, but to my knowledge, the Constitution does not, and some localities interpret place of public accommodation to apply to, e.g., purely private clubs that have no meeting places. I am not aware of any successful constitutional challenges in the last 30 or so years to such laws, except on Dale/expressive association grounds. As for action/speech, I think people would be reasonably concerned if this law actually applied to Amawi's private boycotting action, though it's not 100% clear that that would be unconstitutional.

  • perlchpr||

    Oh, fuck. The hihnswarm has invaded Volokh.

  • James Pollock||

    " It's certainly not clear that I have a right to engage in such discrimination"

    It's a property right, not a Constitutional right, but it's pretty clear. The catch is, of course, that the state can override property law with a compelling public purpose. So if you own the only access to the beach, and the beach is public property, you've got a public easement.

  • James Pollock||

    Article 1, section 8

    We are just naming random parts of the Constitution here, right?

  • James Pollock||

    Madison didn't write any of the amendments. Didn't think we needed them.

  • jph12||

    "It ani't what you know that gets you in trouble. It's what you think you know that just ain't so."
    Probably not Mark Twain.

  • mad_kalak||

    Madison didn't want them at first, but was the drafter of them after a compromise.

  • Lester224||

    The spirit of the Citizens United (federal) decision was that businesses have the rights of people when it comes to free speech. This Texas law trends against this precedent. A boycott should be protected as free expression.

  • Rev. Arthur L. Kirkland||

    So . . . it's a Hobby Lobby case?

    Someone should tell Prof. Bernstein how that can go.

  • Eddy||

    I must apologize because missed Amawi's RFRA claim. Could you link to it?

  • Eddy||

    Hihn and the are Rev tag-teaming on this?

  • TwelveInchPianist||

    What's the error? If she has a sincere religious belief that she is required to boycott Israel then she probably has a FRFA claim. But is she making one? I haven't read her complaint.

  • James Pollock||

    "I don't know who Hihn is, but I do know how badly you fucked up."

    The trend seems to be that anyone who notices he fucked up is Hihn.

  • perlchpr||

    Fuck off, hihnswarm.

    Goddamnit, why did anyone ever write a robot for shitposting and goat sodomy?

  • UVaGrad||

    In the lawsuit, she alleges the contract is *with her,* not with a company.

  • David Bernstein||

    The compliance officer of a company would typically sign this document. She's a sole proprietor, so she has to play the role of compliance officer. I find it hard to believe that the ACLU believes otherwise... If nothing else, the contract specifically refers to "it" not "she" or "her," i.e., she's signing on behalf of the company, not herself. It almost seems like the purpose of this lawsuit is to spread misinformation for propaganda purposes... and going to Glenn Greenwald first with the story doesn't exactly disabuse me of that suspicion.

  • Longtobefree||

    You are aware that pronouns no longer have meaning, right?

  • TwelveInchPianist||

    "She's a sole proprietor, so she has to play the role of compliance officer."

    My understanding is that a sole proprietorship is not a separate legal entity from its owner.

  • James Pollock||

    A sole proprietorship has no liability shield for the owner, but can be a separate legal entity it at least some contexts. For example, if Fine Sociallly-Acceptable Product Store signs a lease with landlord, the owner of FSAP Store can't transfer the lease to Socially Disreputable Business, even if both are sole proprietorships operated by the same individual.

  • phoqueue||

    I'm not sure a "transfer" even takes place in that scenario. It seems more like a name change. It's the same person with the same liability, and there's no entity separate from that person.

  • MJBinAL||

    Well, consider this. If she is NOT a business, that is constructed to provide regular services to multiple business', the she would be required under law to become a direct employee of the school, or be contracted in through a services company... and she would be an employee of the services company.

    The contract she is signing is predicated on her being paid as a business, where they do not provide any withholding of taxes, pay unemployment, or workers compensation. She is required to do all of these things for herself as a business. As sole-proprietor, LLC, or a corporation.

    So, either she is signing on behalf of her business, or she is engaged in misrepresentation and tax fraud.

  • James Pollock||

    " If she is NOT a business, that is constructed to provide regular services to multiple business', the she would be required under law to become a direct employee of the school, or be contracted in through a services company."

    Wait a second. I'm not a business, I'm therefore required by law to become a direct employee of some school in Texas?

  • phoqueue||

    Are you saying individuals can't be independent contractors in Texas?

  • NToJ||

    "If nothing else, the contract specifically refers to "it" not "she" or "her,"..."

    If the school district sues her for breach of the contract, it will sue her individually d/b/a [name of sole proprietorship]. A sole proprietor is not a separate legal entity from the individual running it. The pronouns used in the contract have nothing to do with the legal status of a sole proprietorship. Even if she signed the contract as President of [Sole Proprietorship], the effect would be personal liability under the contract.

    I suspect Texas and Ken Paxton would take the position that if the state retains a sole proprietor who engages in boycotts of Israel--even outside the name of its own sole proprietorship--that the contractor would be in breach of Texas law. We'll see when they answer.

  • phoqueue||

    Pronouns in contracts, used artfully or not, don't create legal entities.

  • vrkboston||

    I have to agree with 12IP here. It's a much more complicated argument than Prof. Bernstein is claiming that a sole proprietor, who is just an individual conducting a business, is different from the individual qua individual. Certainly for all liability purposes the person and business are identical. And if a Roman Catholic bishop, as a "corporation sole," and an incorporated closely-held business like Hobby Lobby, has First Amendment religious freedom rights, then why shouldn't a sole proprietorship have First Amendment free speech rights? I suppose one could argue that the Texas requirement relates not to speech (advocacy) but to action (boycott), but to make that distinction stick requires a lot of analysis and argumentation that needs to be persuasive. It's not obvious on its face.

  • David Bernstein||

    First you'd have to establish that there is a First Amendment right to boycott, that it's speech not action. The Supreme Court rejected that notion 9-0 in FAIR v. Rumsfeld.

  • PleaseNoSteppy||

    This blog post is utterly astounding. Never expected to see it on Volokh.

    I guess the power of the Israeli right wing is THIS goddamn important to too many people to let the mere Bill of Rights get in the way.

  • David Bernstein||

    It is absolutely directly related, even more so because of the reminder Eugene recently provided, which the software isn't letting me link to.

  • TwelveInchPianist||

    "because of the reminder Eugene recently provided, "

    this, or this?

  • David Bernstein||

    Neither. He wrote a post in November reminding everyone that FAIR was not dependent on the issue of federal funding, the Court stated that regardless, there was no First Amendment right to discriminate against military recruiters.

  • Josh R||

    I think this is the post you are looking for.

  • Josh R||

    SCOTUS held that FAIR did not have a First Amendment right to boycott military recruiters. David is arguing that businesses similarly do not have a First Amendment right to boycott Israel.

  • JesseAz||

    Hihn, you shouldn't switch between accounts when shitposting. Makes all your socks obvious.

  • James Pollock||

    " there was no First Amendment right to discriminate against military recruiters."

    More specifically, to AMERICAN military recruiters. Colleges can still decline to permit, say, ISIS to recruit on campus.

  • Malvolio||

    It looks exactly on point. Law schools don't have the right to discriminate against military recruiters and still have access to Federal funds. Contractors don't have the right to discriminate against Israel and still have access to state funds.

    What's the distinction you are drawing?

  • MatthewSlyfield||

    "that there is a First Amendment right to boycott, that it's speech not action."

    Wouldn't that be association, not speech, which still falls under the First Amendment?

  • MJBinAL||

    Maybe, but Freedom of Association has been completely debunked for business' by the SC. The entire idea of being required to meet quotas for example, completely guts FoA.

    Again, she IS signing as a business, because she is either representing a business that does work for the School Board, or she must become a direct employee of the School Board. She is clearly intending to be a business contracting to the School Board.

  • NToJ||

    "Again, she IS signing as a business..."

    You keep saying this. I can be an independent contractor, individually, working for a governmental entity. It happens all the time, and does not require anyone to "become a direct employee" of the government.

  • David Bernstein||

    How was it remotely constitutional for the U.S. government to require private and state universities to give military recruiters the exact same treatment they give all other recruiters, even though the universities had moral objections to military exclusion of gay soldiers? The Supreme Court said so 9-0, and I assume it's because there is no easy analytic line between saying that a college has the right to discriminate on ideological grounds against the military and saying that it or any other business has the right to discriminate against gay, Jews, blacks, Asians, etc on ideological grounds, and the Court wasn't willing to issue a ruling that would undermine antidiscrimination laws. The Texas law in essence is an antidiscrimination law that applies to business, which is why the plaintiffs will lose.

  • David Bernstein||

    8-0 not 9-0. Well, you got me. That means you are right about everything. Actually, I explained the connection in the blog post, you merely asserted a lack of connection, I don't have any idea why you think a law that specifically upheld an anti-boycott law on ideological grounds, with the law applying to business (colleges) that have financial dealings with the government is not relevant. In fact, it's directly on point.

  • perlchpr||

    Go delete your code, robot.

  • Jim Logajan||

    So how does a Texas law that singles out Israel in this manner not impinge on the Federal government's exclusive power over foreign affairs? Is the Texas law somehow different than the Oregon law of Zschernig v. Miller that was found to unconstitutionally intrude into the federal realm of foreign affairs?

  • Adam Schulman||

    This seems like a good argument to me. Especially given how American Insurance Ass'n v. Garamendi (2003) applied Zschernig to restrictions to conditions on state contractors.

    Open question though whether a majority today would still affirm this "dormant foreign affairs" clause doctrine given the resemblance to the out-of-vogue dormant commerce clause.

  • David Bernstein||

    No foreign parties are entities are involved in this case. Texas has a policy that it won't do business with Texas contractors who won't do business with Israel. How does that affect U.S. foreign policy?

  • Jim Logajan||

    Substitute at random another country name, say "North Korea", for "Israel" in the law. Then assume the North Koreans decide to take advantage of the friendly Texas law and purchase arms from a Texas arms manufacturer that has a current contract with the Texas government. The Texas law requires the arms manufacturer to sell the arms to NK contrary to Federal policy. The arms manufacturer is screwed whatever they do.

    And it appears that Zschernig v. Miller indicated the structure and reach into foreign relations by a state law is all that matters - even when the law does not conflict with any federal treaty or statute.

  • David Bernstein||

    I don't think it's a winning argument, but plaintiff in this case is free to raise it. Certainly stronger than the First Amendment claim.

  • Jim Logajan||

    I think it is a slam-dunk because the examples of foreign interference are easy to conjure up to anyone not goal-fixated. E.g.:

    Suppose for whatever reason in 2021 the feds order sanctions that penalize anyone doing business with the state of Israel. Israel, accepting your narrow read of the Texas law, then directs its relevant trade to businesses already having contracts with Texas (or arranges shell businesses to do that,) hoping thereby to nullify the federal sanctions. Are you saying then that the feds would lose any case that arose from any punitive action they would take against those business or the Israelis?

    Again - just because the Texas law does not currently conflict with federal foreign policy, it has the clear potential. The feds would desire a single voice and the flexibility to adjust policy without attending or being thwarted by the multitude of such laws that states could enact.

  • James Pollock||

    "Texas has a policy that it won't do business with Texas contractors who won't do business with Israel. How does that affect U.S. foreign policy?"

    Well, defense contractors have to source parts from sources in the United States, and the United States is not Israel. So there's one conflict.

  • MJBinAL||

    The college has every right to discriminate against military recruiters. They do NOT have to right to continue to get Federal Government money and discriminate against military recruiters.

    Ms. Dipshit has every right to boycott (discriminate) against Israel. She does not have the right to be paid by the state while she discriminates against Israel.

    The State of Texas has not barred her company from boycotting Israel, they have said they will not hire the company while the boycott Israel. In short, she and her company have all their free speech and freedom of association rights intact. AND the State of Texas has theirs intact as well.

  • James Pollock||

    "She does not have the right to be paid by the state while she discriminates against Israel."

    Depends on whether or not she has a contract that contains, as one of its terms, that she gets paid.

  • Voize of Reazon||

    AND the State of Texas has theirs intact as well

    Governments don't have rights under the First Amendment.

  • JesseAz||

    David, you're responding to the known reason troll Hihn and one of his many sock accounts.

  • W Tx Intermediate Crude||

    I do see a distinction, but IANAL, so please help as needed.

    Ms. Amawi is free to boycott Israel in her private affairs, such as deciding where to go on vacation. She can boycott Persons of Color, Persons of Gender, or Persons of Religion when she wants to hire a lawyer, doctor, CPA- she has full discretion on where she wants to go for these services as a private citizen. However, if the State of Israel were to develop a speech impediment, she, as a person offering speech services to the public, would be required to provide such services to the State of Israel, or to any Persons of Color, Gender, or Religion as may seek her services.
    Now, the question is, is she required to consider these categories when seeking, e.g., accounting services for her speech business (recognizing the impossibility in real life of evaluating or enforcing such a requirement).

  • Malvolio||

    I would assume that if she provided services to foreign governments -- oh, say, speech therapy to the children of diplomats at the expense of the consulate -- she could not treat Israel worse from any other country.

  • Eddy||

    I'd love to see her supporters - at least the ideological leftists among them - explain why this plaintiff can't be forced to provide speech therapy services to Israel, while bakers can be forced to bake gay cakes.

    They don't like Israel, but they want cake. Oh, the dilemma.

  • James Pollock||

    She lives in Texas. I'm pretty sure she doesn't have to bake cakes for anyone.

  • Eddy||

    I didn't say she was a baker, if I had, you would have paraphrased me accurately.

  • Eddy||

    Wait, I said "can be forced," not "will be forced."

    So anyway, besides that, good summary.

  • James Pollock||

    I didn't say she was a baker, either.

  • PleaseNoSteppy||

    Colorado man never had to be forced to bake some rainbow lgbt cake.

    As of now he can't refuse service because gay ppl are icky to him (or at least it's not enshrined in law yet, plus he's also back in court because he doesn't want to bake a transgender themed cake, which I think gives him a stronger case).

    This woman is boycotting a government and the companies in bed with same government. Contrary to the MSM, Jewish people aren't fused to the government of Israel in some kind of nightmare collectivist hive mind fashion.

    So if a state govt decides we, whether individually or as a "sole proprietor", can't boycott, say, North Korean or Venezuelan goods, we're outta luck and have to obey?

  • Eddy||

    I guess the issue would be whether the federal government has a "foreign affairs power" which preempts state law. Who knows?

    But in this this case she tried a First Amendment claim.

    So...she has a First Amendment right to refuse speech-therapy services to Israel, but if she were a baker in Colorado she could be forced to bake a cake for a gay wedding?

  • PleaseNoSteppy||

    I'm not sure how boycotting X products is equivalent to "refusing speech-therapy service to Israel" since she wouldn't be refusing speech therapy to individual Israelis as part of her BDS beliefs.

    There are many ways of supporting BDS and none to my mind involve refusing interactions with Jews on the level of speech therapy. Because that would once again be conflating the Israeli government and businesses established there with all Jews on earth.

    And the gay couple just wanted a cake (not some rainbow colored "I hate Jesus and love George Soros" cake), not to have bakerman be a DJ at their wedding.

  • Eddy||

    I'm looking for the First Amendment difference between the cases.

    Why can't the country of Israel be a protected class?

    You're not open to a general right of freedom of association, or you'd say the baker could choose his/her own customers.

    So what gives this woman the right to boycott a country while leaving denying the baker the right to boycott a same-sex wedding?

  • James Pollock||

    "Why can't the country of Israel be a protected class?"

    Because it's not a class?

  • MJBinAL||

    Who says?
    Based on What?

  • Eddy||

    It's got no class, and its got no principals. School's out for summer, school's out forever.

  • James Pollock||

    " it's no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group."

    It's different in one way: Refusing to hire Muslims or Jews or blacks are all contrary to federal law. Refusing to do business with Israel is not. What compelling state purpose is this limitation on freedom serving?

    Then, isn't regulating trade with foreign nations an exclusively federal power?

    It appears to me that any business should be free to certify they don't boycott Israel, and then go ahead and boycott the heck out of Israel, because the law is unenforceable. IANAL... would someone who IAL explain why that isn't the case, please?

  • PleaseNoSteppy||

    Corporations and businesses are people, except when Israel. Because Israel.

    That seems like the gist of it.

  • MJBinAL||

    Corporations and Businesses are not people, they are treated as psuedo-people in certain ways under law.

    People are allowed to discriminate. You can bar anyone from your home, invite any group to your home and establish any criteria you like for doing so.

    Businesses can not disciminate. If they all the public in the business, they must allow any public in. It they only allow employees in, they are subject to lots of laws about discrimination (including quotas) plus regulation and enforcement via the EEOC. This is true for sole propietorships as well as LLCs and corporations.

  • James Pollock||

    "Businesses can not disciminate."

    Yes, they can. You meant to say "CERTAIN businesses can not discriminate IN CERTAIN WAYS".
    Some businesses are, in fact, required to law.

  • Jim Logajan||

    "...isn't regulating trade with foreign nations an exclusively federal power?"

    It is. The Texas law seems to suffer the same flaw in this regard as the Oregon law that was found to unconstitutionally intrude into the federal realm of foreign affairs in the case of Zschernig v. Miller.

  • David Bernstein||

    Refusing to hire gays isn't contrary to federal law. I don't think federal law is relevant here, but if you think it is, you can use that example instead.

  • James Pollock||

    Very well. Prohibiting refusing to hire gays has a compelling public purpose... avoiding having a population of unemployable people who must be supported on the public dime. What compelling state purpose is achieved by prohibiting boycotting a foreign nation?
    You can try to dodge this question again, if you want, but it's going to keep coming back.

  • David Bernstein||

    As a rule, compelling public purpose is what the legislature says it is. But when gov't is putting rules on contractors, it gets even broader deference than that. What's the compelling interest NY state has in essentially requiring construction contractors to hire union labor?

  • James Pollock||

    You are still dodging instead of answering the question.
    Is it because you won't, or can't answer it?

  • David Bernstein||

    The answer is that there is no constitutional rule that requires the government to have a compelling interest to put restrictions on contractors. Quite the opposite, in that context the government gets very strong deference. So I'm not going to bother arguing whether Texas has a compelling interest, it's legally irrelevant unless the plaintiff had a valid First Amendment claim, which she does not.

  • James Pollock||

    So, you're going with the premise that government can impede the rights of Americans, whenever they feel like it?
    That's an odd position to take amongst libertarians. So be it.

  • James Pollock||

    Correct, I didn't notice what his position was until he wrote it down.

  • nonzenze||

    No, he's arguing that the government can put restrictions on its own contractors except when explicitly forbidden (e.g. by the 1A).

    Reading this, it's very clear that you are not operating in good faith.

  • NToJ||

    "What compelling state purpose is this limitation on freedom serving?"

    The presumption here is that Texas has to justify its law under strict scrutiny. That would only apply if there were a 1A violation, which is the issue in question.

  • James Pollock||

    No, it isn't. CALLING for a boycott is a 1A issue. CHOOSING TO BOYCOTT, on the other hand, is a property rights issue. I have this money. It's mine. I get to decide what to do with it, including keeping, investing, or spending. Also including NOT doing any of those things.

  • NToJ||

    The Texas statute isn't calling for a boycott, so it isn't a 1A issue. I don't understand the property argument you are making; is it a takings argument? If you don't have a 1A claim, how are you jumping ahead to compelling governmental interest?

  • James Pollock||

    "how are you jumping ahead to compelling governmental interest?"

    If the government wants to invade your rights (not just 1A), it has to have a compelling reason to do so. So, what is the compelling reason at work in Texas' action(s)?

    Participating in a boycott is a decision about where you will (or will not) spend your money. That's property rights. There's no need to determine if it does, or does not, invoke any 1A rights because the question can be answered based on property rights.

  • jph12||

    Have you really never heard of rational basis review?

  • jph12||

    Hell, the government doesn't even need a compelling reason for all of its restrictions on an individual's First Amendment rights.

  • Alpheus W Drinkwater||

    But the Texas law doesn't make it a crime to participate in a boycott, does it? It requires its state contractors to be non Israel boycotters, for some reason. Professor Bernstein seems to be making the argument that the distinction is important. I don't think I've seen you address his argument directly.

  • NToJ||

    "If the government wants to invade your rights (not just 1A), it has to have a compelling reason to do so. So, what is the compelling reason at work in Texas' action(s)?"

    This is the part that I think is inaccurate. The government doesn't need a compelling interest to tell you that you can't spend your money on, for e.g., weed. Or direct you not to purchase cars that fail to meet certain emission standards. Purely economic rights are subject to rational-basis review.

    But I'm not sure you are accurate that this involves a property right interest. The state isn't telling the contractor that they can't participate in a boycott. It's just telling a contractor that they can't also be a government contractor. Nobody has a property right in being a government contractor.

  • Ridgeway||

    It is even narrower than that. The contractor is only prohibited from boycotting Israel in her capacity as a contractor (rather than as an individual). So for example, she cannot refuse to buy her business equipment from Israeli companies (at least if that is her only reason), but she is free to boycott Sabra hummus when buying groceries for her family.

  • James Pollock||

    "The government doesn't need a compelling interest to tell you that you can't spend your money on, for e.g., weed. Or direct you not to purchase cars that fail to meet certain emission standards. Purely economic rights are subject to rational-basis review."

    Rational basis review requires that a compelling interest exist. The legislature is given great latitude in articulating what that interest is, and how the legislation addresses the interest. So, you can't buy weed (except where you can) because weed is bad for you, and people who sell weed are bad, bad people. You can purchase cars that fail to meet emission standards, but you can't operate them on public roadways because emissions cause infants and old people to get sick.

    " Nobody has a property right in being a government contractor."
    Depends on what their contract says.

  • NToJ||

    "Rational basis review requires that a compelling interest exist."

    Rational basis requires a "legitimate" governmental interest, not a compelling one.

    "Depends on what their contract says."

    Right. Nobody has a property right in being a government contractor with zero conditions on the hiring. Anyway, in this case the person is objecting to the contract they are being asked to sign, not the one they already have. And if she was claiming a property interest in the contract she gets, the government would be entitled to terminate on the basis of her participation in a boycott. So she never gets the property interest you're asserting here.

  • jph12||

    "Rational basis review requires that a compelling interest exist. The legislature is given great latitude in articulating what that interest is, and how the legislation addresses the interest."

    So heard of, but don't understand.

  • Greg_Cherryson||

    So, this is how I intend to boycott Israel (sole proprietorship, a one-person business):

    I absolutely pledge not to boycott Israel in my official capacity of business executive. But there is nothing I can do about my individual capacity that refuses to do any work required to facilitate doing business with Israel. My official capacity will, of course, try to discipline my individual capacity, but since my the contribution of my individual capacity is critical to the operation of the business, my official capacity's leverage is limited.

    Eat this. :)

  • California Dreamer||

    Because people have strong feelings pro and con about the Israeli government, I think it's useful to put this a different context. Suppose, back in the days of apartheid, a state had enacted a law stating that all companies with whom it contracted had to sign a pledge not to do business with South Africa. Is there any provision of the constitution that precludes states from enacting such a law? If so, what? Indeed, I would have expected that some local governments would have enacted such laws back in the 1980's, and that those laws would have been challenged in court. Am I correct? If so, what result? There is also an arguable similarity to Masterpiece Cakeshop, in that the business is being forced to sign a statement agreeing to a view with which it disagrees. David, any thoughts?

  • James Pollock||

    " I would have expected that some local governments would have enacted such laws back in the 1980's"

    The way I remember it, the push was to have the universities divest their investment portfolio of companies that did business with South Africa. I don't remember anyone in actual government wading into that particular argument until the federal government did.
    But the federal government absolutely has the power to regulate commerce with foreign countries. It's an enumerated power.

  • ducksalad||

    "the federal government absolutely has the power to regulate commerce"

    Yeah, but wasn't a key holding in Robert's NFIB v. Sebelius opinion that not-buying stuff was not commerce?

  • James Pollock||

    The key holding in Wickard v. Filburn was that it was.

  • MJBinAL||

    Which of these is most recent? And how are they different?

  • James Pollock||

    Your argument rests on the theory that Wickard was overruled and nobody noticed?

  • Dan S.||

    Is a sole-proprietor business a different legal entity than the person who is the proprietor? For tax purposes, business expenses are kept track of, but the whole thing is filed with the individual's tax return. So is she being asked to pledge that she will use Israeli products for business purposes if it makes economic sense to do so? Wouldn't she still be the one buying those products?

  • ducksalad||

    Well, ther's the careful distinction D.E.B. and some of the commenters are making here, and then there's what some local school district employee told the speech therapist. They might or might not not be the same thing. There was the well-documented incident earlier this year where individual homeowners in one town (Dickinson) were being required to sign an anti-boycott statement in order to get Hurricane Harvey repair grants. When challenged the town took off the requirement for homeowners that were not businesses.

    Then there's what the author of the bill had to say, and it doesn't completely agree with D.E.B: '"This is what the bill is about," [Rep. Phil] King told Haaretz, emphasizing that "this is America. If you're an individual or a company and you want to boycott Israel, that's your right to do so. We just won't put our taxpayer money into it." '

    For King the distinction isn't business vs individual, it's whether it's taxpayer vs. private funds:

    'According to King, the situation in Dickinson is completely outside the scope of his legislation, because "they had private contributions from citizens to a relief fund in the city, and the city has set up a grant program to give those funds to help in disaster clean-up and restoration. Those are not taxpayer dollars, so the law by no means applies to these relief efforts."'

  • PleaseNoSteppy||

    Those tax dollars need to go to fund Israeli universal healthcare, don't ya know!

  • David Bernstein||

    Given that the title of the law shows that it's about businesses, and that the law applies to contractors but not to state employees, I think it's fair to read king as saying "whether you are a sole proprietor or an incorporated business."

  • Liberaltarian||

    The form plaintiff was required to sign seems a bit ambiguous to me. It requires "contractor" not to boycott Israel. Not the "sole proprietorship." I'm assuming that plaintiff is not doing business under a dba but rather just individually and would sign the contract just as herself and not as some dba name. Your interpretation of the Texas law seems reasonable, but only if it's limited to the business. If the school district is unwittingly making the contract ambiguous and potentially requiring more than the law mandates, then it's perfectly reasonable for plaintiff to sue.

  • David Bernstein||

    Sure. But I'm sure the school district would have clarified this if asked, and I'm sure this lawsuit just didn't pop up out of nowhere, but was planned and coordinated.

  • MJBinAL||

    If she is a contractor, then she is a business. If she is not a business, she has to be an employee. The lovely folks at the IRS say one, or the other. No exceptions.

  • James Pollock||

    " The lovely folks at the IRS say one, or the other. No exceptions."

    Unless you count the exceptions.

  • NToJ||

    "If she is a contractor, then she is a business. If she is not a business, she has to be an employee. The lovely folks at the IRS say one, or the other. No exceptions."

    Besides the fact that you're repeatedly misinterpreting the IRS, what difference does it make for 1A purposes--or the Texas law at issue--what the IRS says about employee versus independent contractor versus business versus individual?

    You may not know this, but there are many government contractors who are not businesses.

  • David Bernstein||

    The Texas law at issue defines "company" to include sole proprietorships, for for purpose of Texas law, she is a business, to wit "'Company' means a for-profit sole proprietorship,..."

  • NToJ||

    Under Texas law, a sole proprietorship is a human. It involves an individual human being doing business for profit. It is no different than if Professor Bernstein gives speeches for money in his own name; you're operating as a sole proprietorship. What do you think is the relevance of "she is a business"?

  • Tom Q Collins||

    First, leave it to a stuffy law professor to totally miss the forest for the trees. Fine, that's what lawyers do. By design. But you started off by critici....insulting Greenwald personally: " in his typical exaggerated and dishonest fashion..." Would you have any previous examples of Greenwald exaggerating or being dishonest or is this particular trait something you only ascribe to him when he's criticizing Israel?

    ... What I am arguing is that there is a double standard.... are not applied to Jews. ...[Here, for example, is Glenn Greenwald, who has prominently defended his use of "Israel Firster," attacking John McCain for racism for engaging in rhetoric "blatantly designed to stoke raw racial resentments," for such statements as "the usual rules do not apply" to Obama, and questioning why Obama "refused to disclose the people who are funding his campaign."]

    I think the comments to that article did a great job of shutting you down, but for posterity, here's the first one in order:

    You obviously didn't look deep enough otherwise you would have found that the term "Israel-firster" was mentioned in the book "The Zionist Connection: What Price Peace?" by Alfred M. Lilienthal.

    So when we're talking about dishonesty and exaggeration, right now the score is David Bernstein 1, Glenn Greenwald 0.

  • David Bernstein||

    I would have thought Glenn was famous enough now that he wouldn't bother with sock puppetry anymore...

  • James Pollock||

    I've been accused of being enough people that I routinely ignore accusations of sockpuppetry as a weak attempt at diversion, particularly when the accusation substitutes for, rather than leading off, a defense of the claims responded to.

  • MJBinAL||

    Don't be silly, none of us have accused you of being a person.

  • David Bernstein||

  • James Pollock||

    Are you under the incorrect perception that this reference addresses what I said?

  • Tom Q Collins||

    Interestingly enough, the Google search "David Bernstein Israel" provides a few more links than would have otherwise been predicted based solely on the notion that there are probably lots of David Bernsteins in or in relation to Israel.

    Your article in the opinion section of WaPo (to which I cannot link because of Reason's absolutely atrocious software - leave it to a libertarian zine to screw something like that up) it betrays a man with some questionable conflicts on the subject of Israel/Palestine. Based on what I've found, it's become clear that you are someone who will clearly look for ways to criticize anything remotely anti-Zionist-Israel and if I had to guess, you're steadfastly against BDS or anything that might hurt Israeli interests as a whole. So why is someone as conflicted as you the best person VC can find to address this issue?

    And I'll wait patiently for all the examples you have of Greenwald being "typically" dishonest or exaggerating to a degree greater than the other pro-Israel David Bernsteins of the webosphere.

  • DajjaI||

    it's nearly impossible to think of a way in which Ms. Amawi's speech pathology business would ever have an opportunity to in any way boycott or otherwise economically harm Israel

    Maybe, but it's easy to imagine how troublemakers could conspire to falsely allege that her business is engaged in a boycott, using her personal political beliefs as 'proof'. This law is awful and will be used to harass Muslims and needs to be overturned. (And yes it will also be used to harass non-Zionist Jews.)

  • jph12||

    You know we don't stop enforcing laws simply because there are actual instances of false allegations, much less hypothetical ones, right?

  • Sarcastr0||

    I've just started avoiding even interesting threads if that threadshitter shows up.

  • gormadoc||

    Which one? Hihn goes away if we all ignore him.

  • Stephen Lathrop||

    Holy crap! Today's NYT carries an editorial criticizing a move in the U.S. Senate to attach the substance of the Texas anti-boyott legislation to the upcoming, must-pass federal budget bill. Read the editorial, then ask yourself how likely is it that Bernstein's remarks are not part of an all-hands-on-deck effort to push that over the top—making it federal law that no business (or maybe not any person) anywhere in the U.S. can boycott Israel.

    I presume that effort is doomed, right? Because the nation isn't that crazy yet, right? Some reassurance here, please. The editorial is titled, "Curbing Speech in the Name of Helping Israel." It's in the NYT opinion section.

  • David Bernstein||

    I think you have the causation backwards. This lawsuit was likely filed now to undermine the federal bill. As for all-hands-on-deck, I have not been in touch with anyone else, in any capacity, about the federal bill, much less specifically in how it might relate to the Texas lawsuit.

  • James Pollock||

    The federal government, at least, actually HAS the authority to regulate trade with foreign countries. Unlike, say, the several states.

  • Social Justice is neither||

    And yet the same people aghast at this are typically fully on board with boycotts of states that they have policy disagreements with. What were you saying about the nation not being crazy yet?

  • dwb68||

    "the school district certification applies to the business, "it," not the individual "she." Contrary to what I've been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel."

    If she is an *independent* contractor, or sole proprietorship, the company is in fact "she." So, yes, she is being asked to sign this, for the company.

    Were this a larger contracting company, the company would sign it as part of their contract with the school district. Then it would likely be passed down to her in her contract with the contracting company.

  • MJBinAL||

    And even then as an employee of that contracted company, it would only apply to her business activities as an AGENT (Business Law, look it up) of the company, and not her private activities.

  • James Pollock||

    You must have done really poorly in business law. As a sole proprietor, she is never an agent of the company. Literally anyone in the world can be an agent of the company, except her.

  • NToJ||

    Are you a lawyer?

  • Siggy||

    1. The text that you quote refers to the "Contractor" having to make the pledge but then only defines "Company" instead of "Contractor" - which ain't the same. An individual can be a Contractor without being a Company.

    2. You state that discrimination against gays and Israel are Constitutionally the same but one is (potentially) an Individual American Citizen, while the other is a Nation - The Constitution does give some protection to individuals, if only because the Citizen has the right to their own freedom of speech and right to due process while a foreign nation does not.

  • Bob from Ohio||

    Discrimination against Israel is just very thinly disguised discrimination against Jews.

    The law can ignore pretenses.

    Boycotting Israel when Iran, Saudi Arabia and China [among others] exist can only mean one thing.

  • grb||

    Such a bizarre piece of logic. Is it "permissible" to boycott the Saudis if North Korea exists? Presumably (per Bob) there is a most terrible country in the world, and you're not allowed to take a stand on ANY world event until you pony-up on that country. I would then guess you're not allowed any opinion on the third-worse until you've put in your time on the second. I'll grant Israel's faults are so high up on the list it would effectively make the country immune from criticism - which is (of course) why Bob invented this special rule applying to Israel alone.

    In fact, there are many reasons why people adapt one cause or another. For example, the reason South Africa's apartheid rule became a cause wasn't because (1) they were the worst country in the world, or (2) people were anti-white. Khashoggi murder became a cause while the Yemeni carnage didn't. Even granting the WaPo's part, one man seeking to get married, bone saws, and dismemberment? Against faceless dead Arabs who are probably all terrorists?

    Absence evidence on specific cases, saying all Israeli criticism is antisemitic is just a cheap ugly slur. It seems to be effective though. Many slurs are....

  • Bob from Ohio||

    People focus on the Jewish state and ignore a hundred worse offenders because they hate Jews. Not too difficult to believe unless, you know, hate Jews.

    Look at the number of UN resolutions condemning Israel and then the number condemning the Saudis or Cuba or China or Iran or others. Israel gets dozens and dozens compared to none or sometimes one or two. The UN just rejected one against Hamas this month.

    "Even granting the WaPo's part"

    Other than that, how was the play Mrs. Lincoln?

  • grb||

    Stalin, in his infinite cynicism, (supposedly) said "A single death is a tragedy; a million deaths is a statistic" That's a hint how causes begin : Not as statistical ranking by degree of crime, but the way people identify with an injustice. Khashoggi's murder got well more international attention than the Post's reach alone warranted because of the ghoulish horror in the story. Apartheid became a cause because westerners identified with both the European heritage of South Africa's rulers and the injustice they did. To say that's "not fair" is almost completely meaningless and totally irrelevant. Yes, people hold Israel to a higher standard than North Korean. Some of that is antisemitism to be sure, but much, much less than you try to claim. A lot of it is people thinking the Israelis are like us and should meet the standards we claim to meet (whether we do or not ourselves). A lot of it is people weary of seeing this high-profile drama in the news this past half-century. A lot of it just being sick of the stupid shortsighted blindness of both sides given an answer is always within reach.

    You recognize the "it's not fair" thing is meaningless, which is why you need the antisemitic canard. Whether that's seventy, eighty or ninety percent a lie, I don't know. I just know it's a lie. I suspect you know it too.

  • Bob from Ohio||

    His murder got attention because US Senators sucked up to WaPo and as a way to cudgel Trump.

    A Twitter Blue Check Mark and The REsistancE!!! thing.

    Its not a canard. BDS = Jew hating.

  • NToJ||

    Bob is a notorious snowflake who gets triggered when imagining anti-semitism. Better to just let her stew on it.

  • James Pollock||

    I see that now.

  • Lester224||

    As a Jew, I disagree. Discrimination against Israel can be a cover for discrimination against Jews in general, but often it is just an expression of disagreement with the present Likud Israeli government policies.

  • James Pollock||

    Further, it can be readily observed that some members of the Israeli citizenry oppose the Israeli government. Naturally enough, then, to assume that they do so because they are anti-Jew. Those sneaky, sneaky Jews....

  • PleaseNoSteppy||

    And few nations, when their government is criticized, have supporters who wage a massive scorched earth campaign of byzantine justifications to deflect all said criticism, AND get a generous widespread platform from media and politicians and now state governments.

  • PleaseNoSteppy||

    *From FOREIGN governments defending said nation!

  • James Pollock||

    "Discrimination against Israel is just very thinly disguised discrimination against Jews."

    Well, that's certainly horseshit. Straight from the North-facing horse's South end.

  • Bob from Ohio||

    Its not any animal's poop, its fact.

    No one who criticizes/boycotts Israel but does not also criticize/boycotts Iran, Saudi Arabia and China [all worse by any measure] hates Jews.

    China has at least one million Muslims in "reeducation" camps right now. It has no free political speech, it disappears critics and has a "social credit" surveillance system straight out of 1984.

    Any BDS activists boycotting China or calling on US companies to stop business with them?

  • Per Son||

    This is a No True Scotsman if I have ever read one.

  • James Pollock||

    "Its not any animal's poop, its fact."

    It's straight-up horseshit.
    As proof, I offer the fact that you didn't defend it, or support it with any kind of evidence. QED.

  • Bob from Ohio||

    "No one who criticizes/boycotts Israel but does not also criticize/boycotts Iran, Saudi Arabia and China [all worse by any measure] hates Jews.

    China has at least one million Muslims in "reeducation" camps right now. It has no free political speech, it disappears critics and has a "social credit" surveillance system straight out of 1984.

    Any BDS activists boycotting China or calling on US companies to stop business with them?"

    That is a defense and evidence. You don't accept it. Fine.

    Doesn't change the fact. The US BDS movement is a cover for run of the mill Jew hating.

  • James Pollock||

    "That is a defense and evidence."

    No, it's an attempt to alter your claim rather than defend it.

    "Discrimination against Israel is just very thinly disguised discrimination against Jews."

    Somehow morphs to

    "No one who criticizes/boycotts Israel but does not also criticize/boycotts Iran, Saudi Arabia and China [all worse by any measure] hates Jews."

    and then

    "The US BDS movement is a cover for run of the mill Jew hating."

  • JayDubU||

    Is David's position that NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), is no longer good law? If not, it's hard to see how he thinks you can apply the Texas law's prohibition on "taking any action . . . intended to . . . limit commercial relations . . . with Israel" to advocacy in support of BDS, regardless whether it's done by in the person's individual capacity or as a sole proprietor of her business.

  • David Bernstein||

    The dicta, at least, in that case can't be right, because if it were, anyone accused of violating an antidiscrimination law could simply claim he was "boycotting" the group in question for a real or imagined political reason. Don't let blacks eat in your restaurant? Boycott. Won't hire people over 60? Boycott.

  • JimM47||

    I came here to ask the same question that JayDubU asked.

    The dicta in that case seems perfectly sound to me. And I take it from Claiborne's citation to the O'Brien test that it isn't necessarily true all anti-discrimination laws can be defeated by a claim that a person is engaged in a boycott. Rather, we would ask whether the law was sufficiently tailored to a substantial government interest. Many laws could survive that test in most applications.

    But it also seems to me that one can make a colorable argument that the law here burdens more speech than is necessary to support its legitimate aims. On first blush, it seems like the real reason for the law is that people disagree with the message the boycotters are trying to convey, not that the law is targetting the supposed harm created by the method by which they are conveying that message.

  • James Pollock||

    "But it also seems to me that one can make a colorable argument that the law here burdens more speech than is necessary to support its legitimate aims."

    Prof> B. says it doesn't even have to HAVE any legitimate aims.

  • JayDubU||

    It's not dicta. It's the core holding of the case. If the Court hadn't concluded that advocating a boycott is protected by the First Amendment, there would've been no grounds for reversing the Mississippi Supreme Court's decision below granting damages and injunctive relief against the NAACP on the ground that the boycott was unprotected.

  • JayDubU||

    And don't just take my word for it. The Supreme Court unanimously recognized this as the holding of Claiborne Hardware in FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990).

  • James Pollock||

    ADVOCATING a boycott and PARTICIPATING in one are not the same thing.

  • JayDubU||

    The Texas law prohibits "taking any action . . . intended to . . . limit commercial relations . . . with Israel." You don't think this would cover advocating a boycott?

  • James Pollock||

    "You don't think this would cover advocating a boycott?"

    Well, the first amend prohibits laws abridging freedom of speech, and the current jurisprudence applies this limitation against the several states, so... no, it doesn't.

    Watch this:

    Hey, Texas residents! You should rise up against the oppression of your tyrannical state government, and decide for yourself whether or not you think any of YOUR dollars should emigrate to Israel!

    I'll await the arrival of the Rangers...

  • James Pollock||

    Gee, I guess the Rangers were all busy yesterday. Maybe they'll drop by today.

  • Josh R||

    Eugene claimed, "In NAACP v. Claiborne Hardware Co. (1982), the court struck down liability for speech promoting a boycott, but didn't recognize a general right to engage in such boycotts, or else a wide range of anti-discrimination law would have been endangered."

    I take it Eugene believes there is a distinction between advocating for a boycott and participating in one.

  • Voize of Reazon||

    The Court in Claiborne found that advocacy of the boycott was protected speech, and that that participation in the boycott was not unlawful in MIssissippi (though specific incidents of threats and violence were), but did not find it was constitutionally protected such that Mississippi law could not prohibit it.

  • Smooth Like a Rhapsody||

    How is this any different from, e.g., state universities in the mid-80's proclaiming no interaction with South Africa?
    The state as a business partner SHOULD have (I'm not saying that this is the current state of the law) the same rights that any other market participant has.

  • ||

    The real question is why this filthy savage was allowed to immigrate to the United States in the first place.

  • Tom Lawrence||

    Filthy savage? REALLY????

  • ||

    Yes. Really. She comes from a religion and culture that believes in beheading infidels and genital mutilation. That's savagery.

  • James Pollock||

    Ahem. So do you.

  • ||

    No. I don't

  • James Pollock||

    Apostasy suits you.

  • Tom Lawrence||

    That is patently UNTRUE. Her contract contained such a provision, and that's what she refused to sign.

  • JesseAz||

    "I will just explain why Greenwald's take, repeated ingenuously by reporters apparently too lazy to look up the actual text of the underlying law and what Ms. Amawi was asked to sign, is wrong."

    Primary sources? What are those? Actually listening to an argument? Too much work. Just imagine what you think your opponent will say and respond accordingly. Works for sarcastro.

  • UVaGrad||

    It's worth noting that federal courts have granted preliminary injunctions in what appear to be functionally indistinguishable cases from Arizona and Kansas. (The wording of the statutes looks slightly different, but not in a meaningful way.) In both cases, the courts rejected Prof. Bernstein's argument that boycotts are categorically unprotected by the First Amendment.

  • Voize of Reazon||

    Those would be Jordahl v. Brnovich in Arizona and Koontz v. Watson in Kansas. In both the courts considered both Claiborne and FAIR, and agreed with plaintiffs that their cases resembled the first more than the second.

    I think they were misled by this broad summary language in Claiborne:

    We hold that the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment.

    that appeared to lump all boycott activities together without distinction between those that are expressive and those that are not, but the preceding discussion of these activities that justifies this conclusion focuses on undeniably expressive acts

    The boycott of white merchants at issue in this case took many forms. The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause.
  • Voize of Reazon||


    Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments.

    Insofar as these statutes prohibit the refusal to do business but not the public assembly, speechmaking, exhortation and proselytizing in favor of the boycott I see them as following the facts in FAIR rather than those in Claiborne.

    Of course, that is one vote that doesn't count versus two votes that do!

  • Krayt||

    While boycotts do contain expressive content, specifically, disapproval of behaviors by the boycotted entity (they could have no reason otherwise) they also contain deliberate behaviors to punish same.

    Given one side enjoys regulation of not just business behaviors, but business speech under the argument it is "behavior" (something else this blog tracks from time to time) I am not sure they really want to open this can of worms.

    Nor do they want to open the other can of worms about right to associate, I am sure.

    Hence the quote from his 2003 book about judges who can magically sort wheat from chaff in some benighted, politics-free way.

  • James Pollock||

    "While boycotts do contain expressive content"

    Except that you can participate in a boycott without telling anyone you're participating in a boycott, which means no expressive content. If you don't come out and say that you're in a boycott, and why, but rather just the fact of participation, another person may infer reason(s) for participation... but are in no ways guaranteed to be correct.
    At present, I own no BMW automobiles. Is this because I am anti-Germany, anti-BMW, or anti-automobile? Or some mysterious fourth reason, that i'm holding back. Was I offended by something BMW is doing now? Or by something they did in the past?

  • RM2||

    How can you you write a supposedly scholarly article arguing in favor of a statute designed to suppress an economic boycott and cite Rumsfeld v FAIR but ignore NAACP v Claiborne Hardware? Claiborne is the general rule upholding the right to conduct an economic boycott as free speech. Rumsfeld was the exception that was held not to meet the facts in Claiborne. The states are working hard to thread the needle that will get them around Claiborne, and they may have succeeded in the Amawi case, but at least give a fair representation of the Supreme Court decisions on this issue.

  • PleaseNoSteppy||

    I'm not convinced they will get around this Amawi case without setting a dangerous backdoor precedent.

    Imagine a future (incredibly exaggerated here) Alexandria Ocasio-Cortez Administration where California or New York can punish any business or "sole proprietor" boycotting useless Venezuelan or North Korean widgets because it would be "pro capitalist imperialist prejudice" on part of said business.

  • NToJ||

    You have a comically idiotic view of what California and New York liberals will enact. Anti-BDS laws have received votes in both New York and California, and were enacted overwhelmingly in the latter.

  • EscherEnigma||

    Bernstein goes too far.

    You can argue that the school was acting improperly to ask her to pledge to not boycott Israel, and that such a pledge was beyond what the Texas law required, but the bottom-line is still that they did ask her to sign such a pledge.

  • Boojum||

    Except that your First Amendment analysis is wrong. The Supreme Court has expressly upheld boycotts as protected by the First Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982):

    "In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, "though not identical, are inseparable." Thomas v. Collins, supra, at 323 U. S. 530. Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change."

    Id., at 911. Further, under Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010), corporations have the same right to engage in political speech or activity as individuals, so the distinction noted in the article is not a meaningful difference.

  • Boojum||

    Addendum: You are also wrong in asserting that the legislature--even Congress—can make any form of discrimination illegal. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Supreme Court held that Congress exceeded its authority under the 14th Amendment to abrogate 11th Amendment immunity for age discrimination claims. Given the express grant of authority to Congress in the 14th Amendment, I think this decision is unsupportable, but it remains the law nonetheless.

  • Jimbino||

    David Bernstein's "the legislation will inevitably apply to whomever can get support of the legislature" shows bad English grammar. He must mean "the legislation will inevitably apply to whoever can get support of the legislature."


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