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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Anonymous

"When the UN uses the subjective term, 'human rights violation' against Israel it is with a different standard," is what creates some division of perception, in the values of what the United Nations determines. Or that's the story, and you're sticking with it. So the United Nations adopted Plan as Resolution 181 (II), in the endeavor of adopting relationships with peoples who self-defined as Palestininian nationalists and Jewish nationalists. Both held the minimal status to be initiated within their own merits, and of course their denials and birthrights that extend into some nonsensical logic of self-determination from bygone eras. You can take one side or ther other, but I don't have a prejudice, each has their own character and are subject to meliorism if they choose. If not, I assume there will be more of the same, until then #JustJerusalem.

Anonymous

It's inevitable that through the good graces of all the surrounding nations and the U.S., that there will be a country of Palestine in a two-state solution.
History teaches us two things; a nation must have the strongest military in the world to survive as a country. And never mess with God's chosen people, history is on their side.

Anonymous

Boycotting products made by black people, would, as you accurately say, be prejudiced, wrong and insidious.

But it wouldn't be illegal. And the constitution (and supreme court precedent) is clear on this.

The government don't get to suppress legal expression of one position however wrong it may be.

If you don't agree with that, you don't agree with freedom of speech.

Anonymous

Privately funded boycotts of foreign nations are unauthorized and illegal economic sanctions. Only our government can impose sanctions. The organized boycott movement targeting Israel is funded by sources both inside and outside of our country and is anti-American and meant to weaken our country and it's alliance with our closest ally.

Anonymous

" is anti-American and meant to weaken our country and it's alliance with our closest ally."

You see, I don't consider Israel our closest ally. I think maybe your loyalties are bought with that perception. Israel is our closest welfare recipient of U.S. tax payer's support. They are a wealthy country that insists we payroll their defense, and they don't pay enough into their own defense measures. I believe they are a strong country, capable of hitting military targets in Syria just fine, and their territorial expansion doesn't need America's political loyalty and financial backing. You really need to understand historically who our closest allies are, and how we'd ignore Porto Rico which is a U.S. territory where our loyalty belongs, to give money to some charity case country.

Anonymous

One of our old senators once said, 'Israel is our aircraftcarrier in the middle east' which is true. So, if for no other reason then that, Israel is indeed our closest ally, strategically speaking.

Anonymous

Ms. Gloria Anasyrma, you must be blast at a party.

Anonymous

Some of these comments are very disturbing.
A nation or nationality has nothing to do with religion. Israel is doing the same thing to the Palestinians that the Nazis did to the Jews in the 30's. To pass laws that stop free speech and freedom of expression is a crime in of itself.
All the problems in the Middle East is based on man made religious beliefs. They fight for their god and claim to be holy. Israel is the nation of hypocrisy.

AnonymouS

"They fight for their god and claim to be holy. Israel is the nation of hypocrisy."

Really??!!! No one fights for their god. The perfidy of revisiting these arguments is to fall back on that question of deplorability, did Nazism really have a problem with Judaism? Or was it just on top of a hierarchy, and as a way to concentrate its wealth and land holdings it targeted those in Europe who had much of those possessions, artworks, financial holdings, even to the gold teeth pulled. Israel as a nation-state seeking Jewish determinism, I suppose much like India for Hindu, or Pakistan for Muslims, or Japan for Shinto, or Tibet for Buddhism; I could go on. My understanding of most religious beliefs is, if they're patriarchal, they say pretty much the same thing across the board -- just in different languages. God bless.

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