Laws Suppressing Boycotts of Israel Don’t Prevent Discrimination — They Violate Civil Liberties

A number of states recently passed laws that require state contractors — including teachers, lawyers, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in politically motivated boycotts against Israel. Dozens of states have considered such “anti-BDS” laws, and a bipartisan group of 73 senators recently passed a bill — the Combating BDS Act — that would encourage states to adopt such laws.

The ACLU takes no position on boycotts of Israel or any foreign country, but we have long defended the right to boycott, which is protected under the First Amendment. That’s why we challenged anti-boycott laws in Kansas, Arizona, Arkansas, and Texas, and strongly opposed the Combating BDS Act in Congress.

Taking issue with our defense of the right to boycott, critics have accused us of hypocrisy for fighting laws that prohibit contractors from boycotting Israel while also supporting antidiscrimination laws that require businesses to serve the public. Anti-BDS laws, they argue, are also designed to prevent discrimination.

To be clear: Anti-BDS laws are not designed to prevent discrimination. In fact, they’re designed to discriminate against disfavored political expression, which is why two federal courts and several prominent First Amendment scholars have agreed that these laws violate the First Amendment.

And as professor and former ACLU staffer Amanda Shanor explains in a recent post, anti-BDS laws and antidiscrimination laws are nothing alike. The argument that anti-BDS laws serve a similar function as antidiscrimination laws demonstrates a flawed understanding of anti-discrimination laws. Such laws prohibit businesses from discriminating against customers and employees based on who people are — such as their sex, race, and religion.

When a business discriminates against people based on who they are — like when a cake shop owner refuses to sell a wedding cake to a same-sex couple — those discriminatory business decisions are not entitled to First Amendment protection. Even if identity-based discrimination is meant to express a political view, our society has an overriding interest in making sure that people are treated as equals in public accommodations, such as retail stores.

The same cannot be said about political boycotts. Refusing to purchase consumer goods and services to protest a country’s or company’s actions is not denying anyone access to public accommodations based on who they are — it’s classic political expression protected under the First Amendment. That’s where anti-BDS laws go wrong. They expressly target boycotts of companies operating in Israel or Israeli settlements because the government disapproves of the boycott’s message of protest against Israel.

Some have argued anti-BDS laws prevent discrimination based on national origin. But if states were genuinely interested in preventing discrimination by government contractors, they would broadly prohibit their contractors from discriminating based on protected characteristics, such as race, sex, and national origin. Many anti-BDS laws, on the other hand, prohibit only boycotts of Israel — boycotts targeting other countries or groups are completely unregulated. The myopic focus on BDS strongly suggests that these laws are meant to suppress protected speech rather than prevent discrimination.

Further, anti-BDS laws prohibit boycotts that do not even remotely target companies based on nationality. For instance, one of our clients, Mik Jordahl, refuses to buy Hewlett-Packard products for his one-person law firm. He boycotts Hewlett-Packard, an American company, because it provides information technology for Israeli checkpoints in the West Bank. But he does not boycott Israeli companies generally. His boycott nonetheless violates Arizona’s now enjoined anti-BDS law, which prohibits group boycotts of companies doing business in territories controlled by Israel, regardless of whether the boycott discriminates based on nationality.

Finally, antidiscrimination laws have not historically applied to boycotts of consumer goods or services. When Black citizens in Mississippi boycotted white-owned businesses to protest racial segregation, the Supreme Court held that the boycott was protected under the First Amendment. As the court made clear, consumers have a First Amendment right to withhold their patronage from businesses in order to express their political beliefs. On the other hand, businesses do not have the right to refuse service to consumers because of who they are.

Think about it this way: You have a First Amendment right to boycott Starbucks to protest their secular holiday cups. Starbucks does not have a First Amendment right to discriminate against you because of your Christian beliefs. The same principle applies to boycotts of consumer goods and services from foreign countries.

When the government cynically asserts an antidiscrimination interest to suppress disfavored political expression, the harm is twofold: It violates civil liberties and waters down genuine efforts to address the real threat posed by bigoted ideologies, including anti-Semitism. That’s why the ACLU champions civil rights and civil liberties.

You can’t have one without the other.

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Ms. Gloria Anasyrma

Why boycott Israel when there are so many other things to boycott: the local liquor store, the local head shop, the local abortion clinic, the local marijuana store, the local porno shop, President Trump, the ACLU, the internet, cable television, credit card companies & banks to name a few,

SgrA*

I'm not so sure. Jewish people use that 6 million genocide by the Nazis as reason to call anyone who disagrees with Israel politics, as anti-Semitic all over again. It's seems to be a touchy subject, except when its used as leverage for political purposes. There is no similarity between the Israel of the old & new testament ages, and the new nation-state that has a multiplicity of peoples. But if it were . . . then what happened in Germany in the 30s, will happen again in Israel -- as it seeks to cleanse itself of those who are not within its Jewish purity. It becomes a vicious cycle of hateful rhetoric and exclusive legislation aimed at insulating themselves. Personally, if I were to believe the old & new testament details, God punished His own people for not keeping their covenant. Nowadays, it's just where any person of any faith or ethnicity is keeping a civil tone and magnanimous approach to dealing with the dissatisfaction of the day's events and not conflated into some Armageddon scenario of fanaticism.

rk

This article is wrong in so many ways. Just two...
Though I get your example, it is an example of ant-religious bias. Cake shop owners (and thus usually they are the workers) do not typically refuse to "sell" cakes to homosexual couples. They typically REFER the couples to another baker who can MAKE AND SERVICE a cake without violating conscience.
Then, they "myopic" focus is a skewed comment since the anti-BDS intent IS SIMILAR based on clarifying national origin of LAWS THAT ALREADY EXIST. Perhaps the anti-BDS laws go to far in their requirements, then @ACLU and courts should clarify that specifically that laws can be appropriately adjusted, even by executive order like ACA.

AnonymouS

The Constitution is the authority on this, 'Freedom of speech will not be infringed upon.' Anti-BDS is a call to follow the Constitution. If other countries don't like the free speech laws given to American citizens, they 'could' change their business approaches to change the perspective causing the boycotts, after all Israel is blockading the Palestine's imports, so in a way they are purposely boycotting those shipments too. What's fair for one, if fair for another. BUT, other countries do not have a pathway in our country -- to change our constitution, or the legal system supporting it, through foreign lobbying efforts. If tried, I might call that an act of war, similar to Russia's act of war against the U.S. during the 2016 election.

Anonymous

AnonymouS Excellent post.

RK

Anonymous and @ACLU : evidently the Constitution is NOT the authority in the streets according to those who have sided like you and who discriminate against the religious and against Israel. Grow up and lose your double standard then or don't quote Constitutional authority. Palestinian culture is anti-rights, and more so than Israel has or ever will be, initiating general terroristic activities . If discrimination or boycotting were ever due it would against Palestine instead.

RK

As to foreign influence on elections, HA, I almost fell over when I re-read that. Anyone who believes that REALLY needs to grow up and get a life with their nose out of "social media".

Anonymous

The disturbing trend of the democrats and the five media conglomerates (which control 90% of all media in our country) to oppose Israel reveals a shared antisemetic foreign policy and supports Iranian terrorism, is anti-American and means to weaken our country. Israel has replaced England as our closest ally and to oppose them is to oppose our country as well. Boycotting Israeli products is like boycotting products made by black people, it is prejudiced, wrong and insidious in it's concept.

Anonymous

Since when is opposing human rights violations committed by Israel antisemitism? Being Israel does not make them special and does not make it ok for them to do whatever they want to.

Anonymous

When the UN uses the subjective term, 'human rights violation' against Israel it is with a different standard and is historically anti-Isreal and anti-semetic. Normal usage of that term is in reference to Stalin or Hitler or a bad cop beating up a black kid, not in terms of Israel's right to exist and the defense of their country.

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