The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Challenge to Georgia BDS Law Loses on Qualified Immunity Grounds
The Eleventh Circuit therefore avoids deciding whether such laws are constitutional.
I think they are facially constitutional, and Arkansas Times LP v. Waldrip (8th Cir. 2022) (en banc) was correct in upholding them (see also Prof. Michael Dorf's, Prof. Andrew Koppelman's, and my amicus brief on the subject, as well as Prof. Dorf's follow-up post). At the same time, they, like other antidiscrimination laws, might be unconstitutional as applied in certain situations, perhaps including selection of speakers at an academic conference (though the question is complicated when the government is acting as contractor). But yesterday's Eleventh Circuit decision by Judges Wilson, Branch, and Luck in Martin v. Chancellor avoids the question:
Abby Martin appeals the district court's dismissal of her 42 U.S.C. § 1983 suit … on the grounds of qualified immunity. She argues that the district court erred in dismissing her claim that Defendants violated her First and Fourteenth Amendment rights by refusing to contract with her to speak at an academic conference unless she signed a clause, required by Georgia law, promising she would not participate in a "boycott of Israel" for the duration of the contract. Specifically, Martin argues that, because it was clearly established that Defendants should have known that Georgia's law requiring the clause violated the Constitution, they are not entitled to qualified immunity.
The court disagreed with Martin's position; here's an excerpt:
Martin asserts that NAACP v. Claiborne Hardware (1982), which involved a consumer boycott of white-owned businesses in Mississippi, established the broad principle that the government cannot prohibit nonviolent, politically motivated boycotts and argues that principle "makes clear that [O.C.G.A. § 50-5-85, the anti-BDS statute] violates the First Amendment." But although the Court held that the "nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment," the conduct at issue in Claiborne involved private actors rather than government officials, and there was no state statute involved in the case. Notably, the Court expressly reserved the question of whether "a narrowly tailored statute designed to prohibit certain forms of anticompetitive conduct or certain types of secondary pressure may restrict protected First Amendment activity."
{While we make no conclusion on the underlying constitutionality of O.C.G.A. § 50-5-85, we also note that the Eighth Circuit recently upheld the constitutionality of a similar anti-"boycott of Israel" statute in Arkansas. In doing so, the Eight Circuit emphasized that the key question in Claiborne was "whether the activities in support of the boycott, both peaceful and violent, were protected." And, as the Eighth Circuit also noted, Claiborne "stopped short of declaring that a 'boycott' itself—that is, the refusal to purchase from a business—is protected by the First Amendment"; expressly acknowledged that " 'States have broad power to regulate economic activity' "; and held only that States cannot prohibit the " 'peaceful political activity such as that found in the boycott in'"
While Martin argues that Waldrip was erroneously decided, she misses the point—even if it was erroneously decided, the fact that a sister circuit distinguished [Claiborne] and held that a law similar to O.C.G.A. § 50-5-85 is constitutional reinforces the reality that [Claiborne] did not establish with "obvious clarity" that the implementation of such anti-boycott clauses into contracts is unconstitutional.}
So, while Claiborne did find that the plaintiffs there were engaged in a constitutionally protected activity with regard to their boycott, it did not speak to a state's ability to regulate anticompetitive behavior by state employees via statutes like O.C.G.A. § 50-5-85. Thus, it did not craft a "broad principle" that established with "obvious clarity" that Defendants would know that "every objectively reasonable government official" implementing their state's anti-"boycott of Israel" laws, as Defendants did so here, were violating federal law in doing so….
Finally, Martin argues that "Defendants' conduct was so obviously unconstitutional that no specific case is needed to establish it." We disagree.
Where no past case is "materially similar" and a constitutional violation cannot be established through a "broader, clearly established principle," a plaintiff can still show that a defendant is not entitled to qualified immunity by proving that the defendant's conduct "lies so obviously at the core of what the [Constitution] prohibits that the unlawfulness of the conduct was readily apparent to the [defendant], notwithstanding the lack of fact-specific case law." As we have emphasized, "[c]ases that fall under this narrow exception are rare and don't arise often." And these situations are frequently reserved for instances where officers exert their physical will on a plaintiff in an "outrageous" way in an obvious violation of the Fourth Amendment.
Contrary to Martin's assertion, Defendants' inclusion of O.C.G.A. § 50-5-85's mandatory anti-boycott clause in her failed contract is not one of those instances. In light of the fact that the Eighth Circuit has expressly approved the constitutionality of a similar law in Arkansas, there is no reasonable argument that the inclusion of the anti-boycott clause in Martin's contract "lies so obviously at the core of what the [Constitution] prohibits that the unlawfulness of the conduct was readily apparent" to Defendants. While another state's law and another circuit's precedent certainly cannot clearly establish law in this circuit, the existence of this law and Waldrip demonstrates the ongoing debate about the constitutionality of anti-boycott clauses nationwide.
Nor is this an excessive force case where an officer's "outrageous" behavior clearly implicates the Fourth Amendment. Instead, Martin is upset that a contractual obligation was included in a contract she wished to sign for an event that ultimately did not occur. This case is not a "rare" "obvious clarity" case where a plaintiff can show a constitutional violation was clearly established without relying on any caselaw….
Deborah Nolan Gore of the Georgia A.G.'s office represents defendants.
