Free Speech

The Eighth Circuit's Narrow Decision About the Arkansas BDS Statute

One provision has been invalidated, but the general ban on boycotts of Israel by most state government contractors still stands.

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An Arkansas statute generally bans the government from contracting with companies that are boycotting Israel. It defines such boycotts as

  • "engaging in refusals to deal,
  • terminating business activities,
  • or other actions that are intended to limit commercial relations

with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner" (bullets added).

District Court Judge Brian S. Miller refused to issue a preliminary injunction against the statute, and granted the state's motion to dismiss the challenge. The court concluded that "other actions …" should be read as dealing with other commercial behavior, and not, say, speech urging boycotts:

While the statute also defines a boycott to include "other actions that are intended to limit commercial relations with Israel," this restriction does not include criticism of Act 710 or Israel, calls to boycott Israel, or other types of speech. Familiar canons of statutory interpretation, such as constitutional avoidance and [ejusdem] generis ["[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words"], counsel in favor of interpreting "other actions" to mean commercial conduct similar to the listed items.

And as thus limited to commercial behavior, the court held, the statute likely didn't violate the First Amendment. (Michael Dorf, Andrew Koppelman, and I filed an amicus brief on appeal agreeing that the law is constitutional if read as limited to commercial refusals to deal.)

Friday, the Eighth Circuit (in an opinion by Judge Jane Kelly, joined by Judge Michael Melloy, with Judge Jonathan Kobes dissenting) interpreted the "or other actions" clause more broadly, to include speech promoting boycotts, and therefore held that the law was unconstitutional. The majority expressly didn't opine on the constitutionality of the "refusals to deal[ or] terminating business activities" portion of the law; the majority said,

Assuming without deciding that the Act would not run afoul of the First Amendment if it were limited to purely economic activity, our focus is on whether the term "other actions" includes activity that is constitutionally protected.

The court therefore "reverse[d] and remand[ed] for further proceedings consistent with this opinion."

But what's going to happen now? Here's my sense:

[1.] The District Court, following the Eighth Circuit mandate, will deny the state's motion to dismiss the challenge, and will likely grant a preliminary injunction against the "or other actions" prong.

[2.] But nothing in the panel's decision requires the judge to change his mind as to the constitutionality of the ban on doing business with companies that refuse to deal or terminate business activities. Under Arkansas law (which governs the question whether the provisions of a statute are "severable," so that invalidating one wouldn't require invalidating others),

Except as otherwise specifically provided in this Code, in the event any title, subtitle, chapter, subchapter, section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this Code is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of this Code which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of this Code.

So the "refuse to deal" and "terminate business activities" still stand, and likely won't be blocked by the District Court.

[3.] The challengers will appeal that decision not to block those provisions, with the "are boycotts constitutionally protected?" question that the Eighth Circuit ducked being back before that court. The can has been kicked down the road, but it's still visible a few houses down, and the Eighth Circuit will come up to it again soon enough.

NEXT: Publishing Another Newspaper's Spiked Story: Copyright Infringement or Fair Use?

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  1. Time for every red state to similarly ban contracting with any company interfering with communications of elected officials or anyone on a ballot in the state

    Ban Facebook and Twitter and Google and every other internet and non-internet service that interfered with candidates’ or elected officials’ communications from being used on any state or local or school computer for 5 years. And ban them from government contracts of any kind. And continue the ban for another 5 years every time they interfere.

    1. Wow, way to totally miss the part around the portions of the law that relate to speech likely being unconstitutional.

      1. Interfering with communications is not speech.

        1. It depends on how you interpret “interfering,” much in the same way this case turned on how you interpret “other actions.”

          1. If their decisions to publish something are speech then they are legally liable for what they decide to publish and they can look forward to being a defendant every time anything on their services is defamatory or violates a statute. If they are not liable for the content, then their decisions are not expressive and therefore not speech.

            They are either speakers or a platform that allows other speakers. Their decisions can’t be one thing when they want one benefit and the exact opposite when they want another.

            1. A statutory shield from liability for the Volokh Conspiracy does not change that what I am writing is speech. Thus, if Eugene “interferes” with what I write, that interference may or may not be expressive on his part without regard to the liability shield.

            2. then they are legally liable for what they decide to publish

              No, they’re not, because § 230 says that they are not.

              (To be precise, it says that they’re not deemed to be publishing it at all.)

              Their decisions can’t be one thing when they want one benefit and the exact opposite when they want another.

              They actually can be. What idiot Twitter Law grad told you otherwise?

              1. They are welcome to test that in court. Obviously courts can decide anything any way they want.

                Until then, red states should ban them and make candidates on the ballot a protected class for all state laws regarding discrimination.

                1. Waahh, the mean old company won’t let my favorite candidate use their platform, help me Mr. Government!

                2. Florida governor Ron DeSantis has proposed a fine for a social media site that removes the account of a candidate. That won’t fly if Twitter is viewed as a publisher, but might as a viewpoint neutral regulation if Twitter is viewed as a platform. I have no idea whether Section 230 plays any part in the First Amendment determination of publisher versus platform.

      2. Not only that, the two situations aren’t even on point. The social media bans weren’t implemented because the candidates were candidates; the media bans were implemented because the candidates (one in particular) was fomenting violence and spreading lies that the election had been stolen.

        1. Doesn’t matter why. They will always have an excuse for anything they do.

          Red states should not contract with partisan censors who take actions to prevent communications between candidates and voters.

          1. Disaffected right-wingers who do their whining about censorship at a conservative blog that engages in partisan censorship are among my favorite culture war casualties.

            1. On the hobby horse again.

        2. I’m sure you think that started it. But then you see pro-gun rights groups and pro-life groups suddenly being banned. You see organizations that engage in investigative reporting banned.

          And then you have to wonder. Who is next?

          Maybe Google will convince Facebook to start social media bans on those organizations that promote unionization at Google? Maybe China will convince Facebook that “Lies” that COVID actually escaped from a lab should be banned. As do any people that promote them.

          1. Who cares? Companies don’t owe you the use of their property. Man up and find some other venue.

            1. Do you feel the same away about LGBTQ couples being able to require the services of custom bakeries? How about a company like Woolworth’s owing people the use of their lunch counters?

            2. “Who cares? ”

              Those who value free speech care.

              1. BS. Twitter and Facebook have speech rights too.

                1. So, this argument is broken. Twitter and Facebook can continue to say whatever they want to say. No one is stopping them. No one is forcing Twitter and Facebook to say anything. Millions of messages are published on Twitter and Facebook by private parties, and no one really thinks Twitter and Facebook themselves are actually saying these things.

                  But when Twitter and Facebook deliberately SUPPRESS those messages from private parties, they are suppressing free speech. It’s not just governments that can suppress free speech. Large mega-corporations can do it just as easily.

                  1. “But when Twitter and Facebook deliberately SUPPRESS those messages from private parties, they are suppressing free speech.”

                    What you call suppression is Twitter exercising its own speech and association rights. If Twitter doesn’t have the right to choose what it does and doesn’t post on its own site, then everyone’s First Amendment rights are situational and effectively meaningless.

                    Yours is an incoherent concept of free speech. Enforcing it would require a drastic constriction of what First Amendment jurisprudence currently protects. If you doubt that, try passing a law that prohibits Twitter from deleting the messages you think it’s “suppressing,” and see how fast SCOTUS knocks it down 9-0.

                    1. When a large monopolistic mega-corporation “exercises” its free speech in such a manner, in a situation where there’s a large power imbalance with a small individual or group, it is effective suppression. It the power imbalance and the monopoly-type situation.

                    2. That may make sense to you, but it’s legally incoherent. If these companies are monopolies, the DOJ has an antitrust division for that. If you say you object to speech suppression, but you’re OK with suppressing Twitter’s speech to elevate speech you prefer, you’re an unprincipled enemy of actual speech freedom. You’re exactly what you purport to oppose.

          2. Which specific gun, anti-abortion and investigative groups are you referring to?

            1. The Virginia Citizens Defense League, LifeSiteNews, Project Veritas….all banned from one social media or another.

              Perhaps you don’t mind. But who is next….?

              1. Armchair, in case you missed it, there was a riot at the capitol on January 6, generated in large part by lies that the election was stolen. In a free society you’re going to have a certain number of professional liars and con artists spouting nonsense; that comes with the territory. But, when they reach enough critical mass to result in an insurrection, I think social media is to be forgiven for trying to turn down the volume.

                The organizations you cite are all professional liars and con artists spouting conspiracy theories that are increasingly posing a risk to the safety of the republic and democratic values. Please stop trying to pretend that they’re honorable people with a different point of view. And while the government may not be able to put them out of business, social media has the same right to deplatform them as it would to deplatform any other type of fraud.

                Facebook would not allow me to post that my snake oil, available for only $1000 a bottle, will cure your cancer. Why should it give space to the political snake oil salesmen you reference?

                1. Amongst a few other riots in the prior 7 months….

                2. “The organizations you cite are all professional liars and con artists spouting conspiracy theories that are increasingly posing a risk to the safety of the republic and democratic values”

                  So, in your opinion, it is entirely appropriate to denote who is a “professional liar and con artist” and suppress their speech?

                  “Facebook would not allow me to post that my snake oil,”

                  Facebook is perfectly happy to allow any sorts of people to post about any sort of snake oil (FDA guidelines and laws not withstanding). You can find all sorts of posts about “Jade Eggs” helping your vagina or Cannabis oil curing cancer on facebook.

                  But cross facebook’s political line? That gets you suppressed.

                  1. If the government were suppressing speech, you’d have a point. But for a private platform to decide that it will be a responsible corporate citizen and not provide a forum to viewpoints that have demonstrably led to violence is a perfectly reasonable position for them to take. If I were facebook, would I deny a forum to the Ku Klux Klan? Oh hell yes. If they’re planning a necktie party for some uppity gentleman of African descent, they can find some other way to get the word out.

                    Lies, even harmful lies, may be protected by the First Amendment, but that does not obligate Facebook to platform them. Trump may have a First Amendment right to lie about the election being stolen, but he’s not entitled to use anyone else’s platform for it.

                    1. “If I were facebook, would I deny a forum to the Ku Klux Klan? Oh hell yes”

                      There’s an old case by the ACLU, where they defended the free speech rights of neo-Nazis. The classic line there is “I disapprove of what you say, but I will defend to the death your right to say it”

                      I take it you don’t agree with such sentiments anymore

    2. Not letting someone use your private property is now ‘interfering’ with their communications.

      Jesus Christ.

      1. It’s one thing for these self described free speech advocates to reveal how little they ever cared about neutral First Amendment principles, with their “Mommy, make Twitter repeat what I say” whining. But the kicker is how oblivious they are to the fact that they’re revealing it.

    3. Do most states have contracts with Facebook, Google or Twitter?

      1. Actually, yes. Most public entities are on Farcebook and Twatter, using both to make public announcements.

      2. Doesn’t matter because the ban in the article above is not merely binding on state agencies and subdivisions but on any company that does business in the state (for a definition of “does business” that I admit I’m still a little fuzzy on).

        So while Google, Facebook and Twitter would probably laugh off a boycott by the state officials, they would be more hurt by a ban on their use by a large number of companies. Of course, that’s also what would make the ban very difficult to defend against a 1A challenge.

  2. Ah, what would happen to FB, Twitter et al. if Citizens United were overturned. These corporations doubtless use crporate power to influence elections.

    1. LOL. So much for all the talk about free speech for corporations from the right. As usual, no actual principles, just attempts to tilt the playing field in favor of your team.

      1. What else is new?

      2. Strawmen sure are bad. I join with you in condemning the lack of principle of these strawmen you speak of.

    2. Ah, what would happen to FB, Twitter et al. if Citizens United were overturned.

      Absolutely nothing.

      These corporations doubtless use crporate power to influence elections.

      Is that what BCRA banned before CU overturned it? No.

      1. I’m not sure. In kind contributions are a thing.

        What is the value of banning communications from a certain political group in an election? Massive.

        1. No one is ‘banning communications,’ they’re just not letting you use their property to do the communicating. Stop being so whiney, you sound like Chomskites after Citizens United or Janus.

          1. He has a point — and I’d be concerned if my side could do the same.

          2. “they’re just not letting you use their property to do the communicating”
            Of course, FB, Twitter and Instagram their wealth to exercise viewpoint based discrimination for their own political purposes, the kind of thing folks who complain about Citizens United are critical of.
            My question was “how would this change is CU were overturned (unlikely).”

            1. Channeling your inner Liz Warren and Noam Chomsky, nice.

              When the Left whined about CU they were being silly whiners, now with the Right doing it about ‘Big Tech’ they are the same.

              It’s like arguing that because Fox doesn’t have Chomsky on more the government needs to get involved to make things ‘fair.’

              1. I’m channeling no one, certainly not Prof. Chomsky.
                I asked a question. You react with a hostile comment.
                Why? What is your problem?

                If you cannot see that the use of a massive capital asset to affect politics is not at least similar to the Koch brothers spending multi-millions on a campaign, then I wonder why the scales cover your eyes.

              2. Moreover, you have no accurate idea of my politics, although you seem to think that you do.
                How about a little more good will in the discussions and everyone might learn something.

          3. This may surprise you, but if you “do not let” someone communicate, on your platform while allowing everyone else to do so, you are indeed “banning” their communications

            1. My argument has been and continues to be that FB, Twitter, Instagram, and maybe YouTube have evolved into entities will all the characteristics of a common carrier. As such they out to be designated as such under the law.

              1. I disagree with this. They are not common carriers, since the use of a twitter and Facebook is not required for modern life as is water, electricity, Internet, and telephone service. One way you can tell is the use of the word service, versus some apps.

                I still think we should think hard about the moral and policy implications of these company’s choices.

                But there oughtn’t be a law. In fact, I think there can’t be. Something can be wrong, but also there cannot be a law against it for Constitutional reasons.

                1. Disneyland isn’t required for modern life either, but it falls under common carrier law.

                2. UPS is needed for modern life, FEDEX is. Sorry S0. FB is far more necessary to many people.

              2. IF they had evolved into a common carrier, I would agree with your legal analysis. However, I do not agree that your premise has yet been met. Common carriers are distinguished by physical barriers to entry that lead them to become natural monopolies. Social media companies’ sole real barrier to entry is network effect. And MySpace is all the evidence you need that network effect is insufficient.

                On the other hand, the very regulation you want would become a huge barrier to entry for new upstarts who want to compete with Twitter, Facebook and Google.

                1. “Common carriers are distinguished by physical barriers to entry that lead them to become natural monopolies.”

                  That’s not true. There are many corporations that are not natural monopolies that fall under common carrier law. Delta, Southwest, Fed Ex, all fall under Common Carrier law. And none of them are monopolies.

                  1. Greyhound Bus Lines is a better example, and in the NE, it has a marginal share of the market dominated by regional companies such as Peter Pan & Concord Trailways.

                  2. Moreover, FB and the other try actively to suppress competition by buying off other who want on the track.

  3. 1. Israel is not a person.
    2. States are not allowed to engage in foreign policy. A state cannot ban a boycott of Israel anymore than it can place sanctions on Israel.

    1. They aren’t banning boycotts. They are banning the State from doing business with those that engage in boycotts.

      1. Banning businesses based on foreign policy is still foreign policy.

        1. Point to me where it says in the constitution that states are catagoricaly banned from doing anything that affects foreign policy.

      2. If a contract is considered a benefit in the unconstitutional conditions doctrine, and if boycotting is a constitutional right, then the state cannot neither ban the boycott nor refuse to contract with a business that boycotts.

        However, a business almost certainly does not have a constitutional right to boycott (I am assuming a boycott is conduct, not speech, much in the same way refusing to serve a gay couple is conduct, not speech).

        1. Refusing to serve a gay couple is both conduct and speech.

          1. I believe posting large “God Hates Fags” signs in a place of public accommodation (i.e. restaurant) would run afoul of the anti discrimination laws, even though that clearly is speech.

    2. “States are not allowed to engage in foreign policy”

      Someone better tell that Virginia Governor, Thomas Jefferson, that his public courtship of the French is unconstitutional. He would be very surprised at the news.

      The only restriction is the commerce clause, states cannot regulate foreign commerce. Because obviously. A state cannot blockade a port on the states borders if the federal government allows the company to ship there.

      That is completely different from a state regulating its own companies, which they absolutely can do. You might have a very tenous case if the law was the other way, i.e. the federal government allows companies to trade with Israel, but the state blacklists them … but certainly not the law as written. There is no federal law that overrule the states actions under the commerce and supremacy clause here. Nor can there be.

      1. “Someone better tell that Virginia Governor, Thomas Jefferson…”
        That was long ago in a galaxy far away.

        1. More to the point, Jefferson served as governor long before the constitution was drafted and ratified.

      2. You say
        1. States cannot regulate foreign commerce.
        2. States can regulate their own companies.

        You say it follows that states can regulate the foreign commerce of there own companies?

        1. The companies here are engaging in a boycott, they aren’t directly engaging in foreign commerce. States cannot regulate foreign commerce when the federal government specifically overrule them. The constitution gives the federal government control over foreign commerce, it doesn’t say states cant affect it.

          You cant go down logical pathways where, state bans brand of coffee, coffee is exported from Brazil, foreign commerce affected, you cant do that! It doesn’t work like that. If it affects the shipment of goods, tariffs, sanctions, etc. then yes that is prohibited.

          Here it plainly isn’t. Regulating engagement with your own companies regarding an opinion over Israel or even business relationships is a first amendment issue, not a federalism issue. This isn’t even about whether I support the law or not, I do think the first amendment argument is much stronger than is being stated. But it isnt a federalism problem.

          1. You mean to say a state can place sanctions on Brazil simply because there is no conflicting federal law?

            1. Dude your purposefully misinterpreting me.

              No a state cannot sanction Brazil. A. that is probably preempted by some federal law anyhow and B. see dormant commerce clause.

              Yes, a state can regulate coffee, even though it is a major export of Brazil.

              No a state cannot sanction Israel.

              Yes a state can regulate, within the limitations of the first amendment, companies in the state who do business with Israel.

              Of course there are exceptions, but they come from international treaties where the federal government explicitly says to the state you cannot do this. The WTO for example. No one is alleging WTO violations here … or even federalism issues, so idk why this is the hill you are dying on.

                1. Ok … so if you read that, you would see that the relevant caselaw, is extremely weak, and that, at best, it is limited to the scope of the dormant commerce clause, which itself doesn’t preempt the law discussed here.

                  And the relevant caselaw concerns regulating citizens direct interactions with counties (inheritance from that county in one instance), not their opinion of the country or their willingness to to business with that country. And it directly says states are perfectly free to have opinions about foreign conduct and make laws about that.

                  1. From the article, ‘Instead, Justice Souter suggested for the Court, field preemption may be appropriate if a state legislates “simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility,”’

                    Taking a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility is exactly what the states are doing here.

              1. Can California, under the dormant commerce clause, refuse to contract with a business that refuses to conduct business in Oregon?

                1. I mean, I would say so, yeah. Arent there laws already that have been upheld that are far more direct, like, you can bar state funded travel to another state. That doesn’t violate anything.

                  1. State funded travel is a regulation of internal state business rather than commerce.

                    1. So the state-funded travelers are not engaged in commerce when they at a hotel in another state? Eat at a restaurant there?

                    2. Of course they are engaged in commerce. But, that doesn’t mean the prohibition on employee travel is a regulation of commerce.

    3. Massachusetts does to Great Britain. See: https://www.wgbh.org/news/local-news/2019/12/02/northern-irelands-troubles-still-resonate-in-mass-state-contracts

      “If the Contractor employs ten or more employees in an office or other facility located in Northern Ireland the Contractor certifies that it does not discriminate in employment, compensation, or the terms, conditions and privileges of employment on account of religious or political belief; and it promotes religious tolerance within the work place, and the eradication of any manifestations of religious and other illegal discrimination; and the Contractor is not engaged in the manufacture, distribution or sale of firearms, munitions, including rubber or plastic bullets, tear gas, armored vehicles or military aircraft for use or deployment in any activity in Northern Ireland.”

      1. 7 MGL 22C See: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter7/Section22C

        Interestingly, “political belief” is included here.

  4. “Familiar canons of statutory interpretation, such as constitutional avoidance and [ejusdem] generis [“[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words”]”

    This canon is stupid and not how the English language works. If I recall correctly, it was the reason Yates vs. US (2015) came out the way it did, and one can read the opinion to see how dumb applying it there was. If you want to limit the statute just limit it, don’t engage in stupid wordplay to artificially do it. Just say those words are uncomstitutionally broad, which violates the on notice requirement of due process, and therefore we will ignore it.

    Courts routinely ignore overbroad language in even contracts, so idk why they don’t simply do it here.

  5. Well, so long as both parties are consenting adults, I’d say…wait, you said BDS didn’t you? Never mind.

  6. In other news, Biden is the first President in more than 30 years not to personally contact the Israeli government in the first few weeks.

    China, Russia…they get personal phone calls. Our long standing ally in the Middle East? Silence.

    1. Most American Jews already vote Democratic, and Biden isn’t moving the embassy, so why waste the minutes?

      1. Because they’re a long standing ally? Because appearances are important?

      2. …Biden isn’t moving the embassy…

        Are you sure about that?

    2. Yeah, all they get is a lousy $4 billion in aid every year (for a country of 8 million people). How will they survive this affront to their national dignity?

      1. Appearances are important. If the US is seen to “not care” about Israel, then those who would attack Israel have less to fear from US intervention.

        If Iran was to nuke Tel Aviv, what would the US response be? Just some sanctions?

        1. The converse of that is also true.

          If Israel feels the US doesn’t care about their interests, then Israel may need to take certain actions into their own hands…

        2. Appearances are indeed important (though not nearly as important as material support). If the US gives billions of dollars worth of weapons to Israel, and makes it illegal to publicly oppose them and their policies of blockade, occupation, and apartheid, it may be seen to “not care” about the rights of Palestinians.

          If Israel was to bomb Tehran, what would the US response be? Wholehearted support, most likely.

          1. I mean, the reason Israel doesn’t bomb Tehran is because the US, giving them aid, tells them not too.

            I would note that selling someone weapons isn’t really giving them aid, they are buying, we are selling, and even when we buy for them they provide intelligence for free, so $8 billion is overstated but whatever.

            It is true however that Israel takes certain actions because the US tells them too. Israel can be far more aggressive on settlements than it currently is. It can be far more aggressive in many areas. It doesn’t not because of international condemnation but because the US constraints its activity. Some administrations more than others, but still its constrained.

            I believe last year Israel shelved its annexation plan because the Trump administration said no, and then broked another deal to make everyone happy. So even Trump used this influence to constrain Israel.

          2. If Israel was to bomb Tehran, what would the US response be? Wholehearted support, most likely.

            You really think that? Under Biden?

          3. “If Israel was to bomb Tehran,”
            It would be with US complicity, Obama, Trump, Biden, or whoever.

        3. “If Iran was to nuke Tel Aviv, what would the US response be?”

          Sit back and wait for Tehran to blow up, would be my guess. Both sides of that conflict have F-15s, so the dogfighting over the Persian Gulf might be interesting to watch.

    3. Perhaps Bibi will learn what every other Israeli prime minister always understood — don’t take sides in U.S. partisan politics. Bibi all but joined the Republican Party, so it should come as no surprise that he finds himself in the cold in a democratic administration. Israel, always, Bibi, not on your life, could be U.S. policy going forward.

      1. I hope so.

        1. Eh, according to all my Jewish friends, he will be out of office in a month, so it doesn’t matter.

          Of they are right. If not then …

          1. None of the current polls suggest that this is likely.

            1. If as seems likely Bibi can form a new government, he will have to disentangle himself and his coalition from the republican party, and perhaps undergo hip surgery to separate himself from Trump if he wishes to work with the Biden administration, a process no longer impeded by Sheldon Adelson.

              Earlier Likud governments had no difficulty in separating their own interests from those of the republican party; apart from their shared exposure to criminal prosecution upon leaving office, I’m not sure what lay behind the marriage between Bibi and Trump, but if it was thought to be a marriage of convenience, it was a short sighted one from the outset.

              1. I have a different take on the situation, one where most of the blame lies squarely with Obama.

                1. Of course it does, as does the blame for the existence of the common cold and the assassination of Julius Caesar. It’s all Obama’s fault.

                  1. No, in this case it is one grounded in Obama’s foreign policy which even his die-hard supporters admitted was an abject failure.

                    1. Which of his die hard supporters is admitting that?

                    2. “Which of his die hard supporters is admitting that?”

                      The Republican ones.

          2. Don’t count the votes yet Carpetman.

      2. After 0bama spent US taxpayer dollars trying to defeat Bibi…

        1. … when all he had to do was wait.

    4. Maybe Bibi can use this time waiting to think what he could do differently, policy-wise, to be on better terms.

      1. The only thing he could do differently “to be on better terms” with leftists (like Obama, Biden, Hillary, Harris, etc.) is play dead. How obstinate of him not to!

        1. Israel and its prime minister made a grave error when choosing one side of the American culture war. It compounded that error by picking the wrong — losing — side.

          Most Americans do not support right-wing belligerence at home. Why should they be expected to subsidize it — at great and varied cost — anywhere else?

          Losing and stupidity have consequences. If Mr. Netanyahu gets lonely, or thinks he needs something, he can call Trump.

          1. Don’t worry RAK. Mr. Biden will be kissing the ass of the Israeli PM soon enough.

            1. Let’s hope not. Israel should pay dearly — including with the end of Mr. Netanyahu’s public office — for any chance to repair the relationship.

              No free swings, clingers.

        2. There is agreement between Israelis and Palestinians to what appears to be the only viable solution:
          1. Binational Federalist Constitution, with
          2. Bill of rights providing equality from the river to the sea, with
          3. “Canton” districts gerrymandered to maintain Jewish control
          4. Freedom of movement on entire land for all people, with
          5. Each canton regulates its own immigration.

          1. Where do you imagine the “Agreement” exists? Public opinion polls suggest this is the least favored solution, among both Israelis and Palestinians.

    5. Just out of curiosity: What has America’s “long standing ally” ever done for the US? (Other than getting it involved in wars that didn’t serve the US national interest in any way.)

      1. Soda Stream is pretty great.

      2. ” What has America’s “long standing ally” ever done for the US? ”

        They gave us some classified intelligence so that Trump could immediately leak it to the Russians.

  7. Assuming that 7 MGL 22C is constitutional — and no one has challenged it in ~30 years — than why can’t the same concept of “discriminate on the basis of political belief” be expanded to doing business with a company that does?

    In other words, if any division of your corporation advertises on Farcebook or Twatter (who *do* discriminate on the basis of political belief) then you can’t bid on any state contracts. That would have the same impact on Farcebook & Twatter than 7 MGL 22C had on Northern Ireland — a few red states doing this and a lot of ad revenue would dry up.

    Remember that Google and Farcebook now control 80% of all advertising revenue…

    1. “Twatter” … “farcebook” … that’s gold jerry! but you couldn’t think of anything for google??? Keep working on your material, Kenny bania

    2. “Remember that Google and Farcebook now control 80% of all advertising revenue…”

      Why try to remember statistics you just make up? What point is there in that?

  8. I’d say Arkansas Times (AT) will win here (and hopefully it goes to the SC).

    First, they’re a newspaper which can post editorials, op-eds, etc., which may be critical of Israel (or any other issue). (Prof. Volokh, FYI, editorials are protected under 1A.)

    Editorials are part of a newspaper’s business.

    So AT would have to certify they can’t do their job in order to meet the state’s requirements.

  9. So, “Buy American” is illegal in Arkansas, or at least, to companies that want to do business with the Arkansas state government?

  10. (1) Why isn’t it compelled speech to have to sign a public pledge not to boycott X? (2) To the point that a 1A right to boycott would gut anti-discrimination laws, why can’t we recognize this right but save anti-discrimination laws as narrowly tailored to a compelling government interest?

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