It’s Time to Reaffirm Our First Amendment Right to Boycott
aclu.org
aclu.org
Whatever you might feel about Israel, you can't deny the fact that they are a strategically valuable geopolitical ally, and it's not unreasonable for the federal government to avoid doing businesses with companies that are actively and publicly boycotting a strategic ally. What if it was Taiwan instead?
This case is more analogous to the case of the cake shop who wouldn't make a wedding cake for a gay couple. It's less about free speech in general and more about discrimination in doing business.
https://www.theguardian.com/world/2022/oct/24/bakersfield-ca...
This isn't an issue of market efficiency though, it's an issue of violating the first amendment.
I, and apparently most voters, don't want to pay that extra money.
Second, there is zero proof that Israel provides goods at a discount, show your work.
Third, in your fabricated scenario, a fourth company would just come in and buy the (fictitious) discounted parts and win the bid. That's how the free market works.
You're clearly not arguing in good faith, so this is the end of the conversation for me.
So if there isn't a fourth company, yes there will be a premium paid due to the boycott. Your claim is essentially that if the winning bidders don't engage in the boycott then the boycott will not have an effect. Sure, but if the winning bidder does engage in the boycott, it will have an effect on cost.
If you're a politician you aren't allowed to say anything against them either.
> the Arkansas Times [...] was asked to sign [a no-boycott certification] in order to renew its advertising contract with a state technical college.
> A teacher in Kansas was told that she could not participate in the state’s teacher-training program because she refused to sign the anti-boycott form
> A lawyer in Arizona was told that he could not be paid for his work on behalf of incarcerated people because he refused to sign the certification
> a child speech pathologist in Texas lost her contract with a local school district because she refused to sign.
> One town in Texas even briefly required victims of Hurricane Harvey to sign the anti-boycott certification as a condition of receiving disaster relief funds.
https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of...
The First Amendment, along with nearly all the rest, applies to the states and the federal government equally.
So ergo, we must destroy the first amendment to shield other countries from valid criticisms? I'd think we'd want our allies to respect our right to free speech above all else.
Edited to add: I even think we would want to respect our right to free speech over the beliefs of our allies.
If, say, you boycott the democratic party (e.g.), then the Biden government would have every right to cancel any contracts because of your political speech. The only way to prove that you're not actually boycotting would be to donate to the democratic party.
In a democracy, a government does not have the right to selectively boycott its citizens for their political views. Otherwise, what's next -- the party in power refusing to award contracts to businesses that support the opposition party? You can see how democracy would collapse pretty quickly.
If a country really should be excluded from trade pass a sanction.
And it doesn't apply at all to e.g. Teachers who are being forced to sign waivers like this
The cheapest bid might be even cheaper absent the boycott. I, and plenty of other people, don't want to pay this premium because of a company's political agenda. Fulfill the contract with the most efficient supplies on the market, or don't both bidding at all.
Just so you know how entrenched Israel (and a certain race) is inside the US government.
What if the government only awarded contracts to companies who promised not to donate money to Democrat PAC's (or Republican PAC's)?
What if the government only awarded contracts to companies who stayed silent on gay marriage, and didn't normalize it in their advertising?
These strike at the heart of the first amendment. Companies are allowed to engage in political speech/action, and boycotting Israel is precisely that. Some people think Israel is a valuable ally, others think it's a horribly unjust and undemocratic country for its treatment of Palestinians.
The government isn't allowed to favor or disfavor individuals or companies due to their political views. That's a bedrock principle of democracy. That's what the first amendment is about. There's zero gray area in this case.
But they already do that, don't they? I mean, not anti gay marriage, but pro diversity. For some reason the UCF bought email lists from some entity, and they believe me to be a small business owner in some US state who shares my first name. I occasionally get emails from them asking me to join their diversity-training in order to become eligible as a supplier.
That's pretty old news. The only new thing (and the reason the ACLU cares, I assume) is that it's affecting a view that is currently associated with the left (BDS/anti-semitism/anti-israeli campaigns).
But diversity isn't speech. E.g. if a business is black-owned or female-owned has nothing to do with their political speech/views.
And diversity is a unique case, related to protected classes, having to do with past explicit discrimination against these groups, and trying to remedy that to some small extent.
In any case, it has nothing whatsoever to do with political expression, and therefore nothing to do with the first amendment. And so no, it has nothing to do with left/right either.
It's just something that most here do agree with, so they're fine with it.
Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
It's not the speech of minority-owned businesses. Awarding contracts to take diversity into account is based on who the businesses are owned by, *not* what those businesses say/believe.
You can disagree with awarding contracts based on diversity all you want, just don't claim that doing so has anything to do with free speech or the first amendment, because that's incorrect.
> Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
The same applies to this case, where the democratically elected legislature says you don't get contracts if you say "don't buy from Jews" and passes laws to that effect.
Whether it's minority ownership or affirmative action in its workforce is irrelevant. Employment policy is policy around protected classes, it's not speech.
While your case of 'you don't get contracts if you say "don't buy from Jews"' makes contracts dependent upon speech. Which contradicts the first amendment.
The distinction is not complicated here. You might not like it, but the distinction exists.
And if a union wants to boycott Taiwan, or Canada god forbid, they probably should have the right to do so.
It gets a bit more complicated with buyers however, what happens if companies do not want to 'sell to' groups, like 'Republicans' or 'LGBTQ advocates' etc..
I think we probably ought to err on letting people decide who they want to sell and buy from and then be very careful when we interject on that, with a difference to protecting individuals rights, and from specific kinds of harm and/or arbitrary treatment.
Which is all a bit different from the government itself deciding who and who not to buy from.
Are you referring to the Boston tea party or was there a much longer running boycott? I ask because my weak understanding is that colonists waylaid ships in port and actively destroyed the cargo. That’s more than a boycott, I think?
And I’m guessing that when the ACLU mentions the Boston Tea Party at the beginning of the article, they mean the bigger series of events and not as much the destruction of property in the harbour. I imagine they’re not advocating for the constitutional right to illegally destroy property as a form of boycott.
(Fully appreciating that context was very different in 1773, I’m not suggesting the Boston Tea Party was “wrong”.)
These days, we have plenty of monopolies that probably deserve similar treatment (or anti trust actions), so the schools don't teach that part of the story.
For ordinary tea drinkers the whole tea thing actually made tea cheaper. It's one of the weirder things to get attention as a reason-for-revolt, really. I suppose the "tea party" protest is just odd and interesting enough that we can't resist lumping that in with far more legitimate grievances.
There is obviously gray area here, but I think it's extremely unlikely the courts will rule that these anti-boycott laws are OK because it only affects employment or contracts. More than likely, courts will see it as a free speech restriction, but will apply the strict scrutiny test to determine if these are an allowed compelling government interest.
Legislators who propose and pass this legislation use it to demonstrate their support for Israel, or coal mining, or gun rights, or whatever anti-boycotting cause they're advancing. They are the primary beneficiaries here, because it helps them get donations and get re-elected.
Entities who are forced to sign these pledges generally put as much thought into it as you or I put into agreeing to a TOS with a binding arbitration agreement. In other words, not very much thought at all.
Because ... As you've pointed out, the government cannot, in practice, prove that those entities are actually boycotting unless the entities come right out and say it. So if the entities actually want to boycott Israel, they can continue to do so without announcing it. The law doesn't actually stop anyone from boycotting Israel; at best, it merely stops them from publicizing what they're doing.
The reason this doesn't get much push-back from most people who are forced to sign the pledge is because they weren't actually planning to boycott anyway. But there's a small number, such as the publisher who's at the heart of this case, who had no plans to boycott Israel, but who isn't going to let those legislators bully them.
You can do both without doing business with the government though, so legality is not questioned.
Of course, there is a ton of gray area here that the courts will have to rule on, but the whole point the ACLU is making is that they believe these anti-boycott laws are in violation of the first amendment.
"Actually free speech means you can lose government contracts or you job as a government employee too"
You know, at least I think China is a bit more honest about how they approach this question.
It could totally be a slippery slope towards the government amassing more power and then granting contracts only to those who parrot the party line, but I believe the solution to that is to reduce government size and power.
And also, I don't find your position so controversial that you'd need a throwaway account.
I think there's a stronger case that your purchase choice is covered as free expression or that the government can't compel you to do business with a private entity.
But that is exactly what boycotts are all about. An effective boycott isn't just you deciding to stop buying something, but it's about convincing lots of other people and organizations to also stop buying something.
And, perhaps most importantly, in any organization there is guaranteed to be a paper trail for any prohibitions against, say, purchasing from any companies in Israel. This kind of legislation absolutely would have a chilling effect on organizational purchases, which is where the vast amount of money sent to places likely to be boycotted comes from.
The new wave of antiboycott laws this article is referring to are much less justified, I think, but you'll note that they're on the same topic in response to still-ongoing efforts by the BDS movement to promote a secondary boycott. So it's not as unreasonable as it would first seem.
As an individual, I would definitely support BDS businesses if I could. I'd stop doing so after Israel ended it's eternal war / apartheid system.
The point of a boycott is to allow individuals to force companies to take actions, not to avoid hurting the amorphous feelings of corporations that don't have a problem with the status quo.
Note that a large percentage (and sometimes the majority) of Jewish Israelis disapprove of the onging human rights violations BDS is trying to end.
- It means you can't advertise that you boycott X and get business from other people who also want to boycott X.
- It means you can't require a subcontractor to also boycott X when doing a job for you.
What the hell? How can that be enforceable? Ok, so you sign it just so you can get the job, but then don't buy stuff from Israel (or whatever the cause/country/company is you want to boycott) - how could they force you to buy the products? This is just stupidity on the part of these states.
If the right to boycott is to be preserved, the Supreme Court must step in.
Yet somehow I suspect this supreme court will find a way to mess this up.
Participate in protests boycotting Israel or try to protest any Israel government policy, you will be blamed for boycotting and your company needs to terminate you if they want to continue doing their business, otherwise government will impose a sanction to your employer, then everyone will try to avoid your employer.
They are asking that companies affirm they won't boycott Isreal (this is almost certainly why the ACLU cares, but anyway) in exchange for government contracts.
Does anybody know how the constitution applies in such situations? What comes to mind is the drug testing requirement for federal contracts. Police can't just come up and randomly drug test you, but you can agree to it in exchange for money. Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.
I understand why the newspaper doesn't sign, I probably wouldn't either. But then I wouldn't expect to get the money.
In this case white supremacists have a long history of using violence.
What about Chick-Fil-A or Hobby Lobby? Hate speech? Depends on who you ask.
It isn't different, in your framing, but there are lots of policy reasons why we wouldn't want the state to coerce or compel speech. Especially political speech, as the case is here. And the text of the 1st amendment and years of jurisprudence make freedom of speech different than other rights (just as 5A due process is different than other rights, etc.)
We mostly recognize that it is generally a bad thing for the government to make you say things, unless there is a very good reason to do soon (like, you must label your food products with nutrition info) [0].
To reframe, imagine the government made you sign a pledge that "Abortion is murder" or "Abortion is great, everyone should have one" instead. Or imagine a law that says "All contracts are voidable, if you (a business) and your employees and your outside contractors must not participate in a boycott of Israel." That law might reach extremely far (too far?) if the company is Walmart (~2.3 million employees) and Walmart wants to do business with your state (it does) and Walmart is asking you to sign that pledge to now do business with them.
So, the question is -- if instead of forcing you to say something, and threatening you with jail, is it okay for the state to just refuse to deal with you (as an incredibly powerful market participant). Some will say "That's pretty clever lawyering on the part of the state to do that," while others will be a little more unsettled, thinking if the state can do this, what else can they do?
[0]: https://en.wikipedia.org/wiki/Compelled_speech#Examples_curr...
This is a tough question because I could imagine a DEI statement that wasn't plainly stupid, and which had a strong purpose, just as easily as I could imagine one that was plainly idiotic. And university education sounds like it would be a special case as well (that is -- have all sorts of factors not present in other cases). A non-crazy DEI for a low level state prison guard? Probably nuts. For a hiring manager? Maybe less so.
> I agree with you, the question I was wondering about principally was the constitutionality.
Appreciate your inquiry, and I'm not an expert in this area of the law, but as an observer, the reach of the 1st amendment can seem sometimes crazy expansive, but I think I'm mostly glad it is?
For instance, my town had an ordinance that made panhandling at busy intersections illegal (one new way to outlaw being poor but which had a facially valid purpose -- safety). ACLU sued and said this was a limitation on the 1st amendment rights of the panhandlers and won. Took away millions in attorneys fees.
This seems like unsettled law? Hopefully a person of conscience will sue.
Nobody does. That's the point. Circuit courts have disagreed, so the Supreme Court will define what the Constitution says.
Families that benefited from 50s-60s social programs legislated them away in the 80s, leverage mathematical inference to assign themselves exorbitant wealth through arbitrary valuations they decide on, buy up the most valuable assets, and pay as little as possible to us to maintain them.
Horse and Sparrow economics is from a similar era of political thought as spoils systems.
A $200k salary in the 80s had the buying power of $600k now. Past winners were not about to have their legacy deflated, so they changed the rules.
And there in lies the problem, the state is trying to punish people for making entirely legal statements they don't approve of.
You can't compare drug testing requirement with Israel case. They do drug testing because you might accidentally create a problem to the government if you are addicted or regularly take drugs: You might share confidential information, introduce bug to the system or accidentally forget to follow processes.
Where is the logic with anti-boycott rules when it comes Israel?
Wow. Using the same logic as that ruling, donating to politicians is not protected by the 1st Amendment unless you also include a memo making clear your intent...
This feels like more "I'll know it when I see it" but with intent instead of porn.
Edit: And you can’t post about how you can’t boycott Israel either.
Indeed, as anyone who has driven into California from Oregon knows, the states are even able to execute foreign policy against other states. Specifically for agricultural inspections in that case.
> The Congress shall have Power [...] To regulate Commerce with foreign Nations
A state prohibiting or requiring the purchase of goods from a particular foreign nation would seem to be encroaching on a Federal power. Especially if this bit gets interpreted as broadly as the next bit does (regulating commerce "among the several States").
Also, remember the risible anti-French boycotts during the Bush 2 administration because they weren’t enthusiastic about an obviously fake casus belli? France was and is an important formal ally of the USA and those boycotts would never be legislatively opposed.
In fact nationality through ethnicity is the norm. What isn't common is that every country but Israel is being pressured to change their nationality laws.
I added that, while I read The Economist and other "thought leader" rags call for a liberation of Japan, Italy, etc nationality law, I have never read any respectable editorial arguing the same for Israel.
I did not mention anything about boycotts. but, since you asked, Japan and Italy were both boycotted (blockaded, actually) in the 30s for occupying territories and putting settlers there.
If we go further with this reasoning we should also shield Saudi Arabia, UAE, Vatican City, Maldives, etc.. from boycott.
Don’t they only accept ultra-orthodox conversions?[1] Good luck with that.
Jewish conversion is much more akin to a tribal adoption into the community than it is to conversion in the other Abrahamic faiths. For Christianity, depending on the denomination, conversion can be as little as saying you accept Jesus as Lord and Savior. And in Islam literally all you have to do is sincerely say the shahada and you’re Muslim.
Edit: [1] looks like there was just recently a supreme court case permitting non orthodox conversions, but I expect the Knesset will overturn it.
https://www.timesofisrael.com/israels-top-court-recognizes-r...
To be clear, no one is arguing that companies can’t boycott Israel. They are simply saying that doing so would invalidate your ability to get government contracts in the given state.
The problem is that it cuts both ways. If you say that this is an infringement of first amendment rights, then the logical extension of that is that the government can never refuse a contract based on a company’s free speech. So for example, say Acme Co openly proclaims their support for the Ku Klux Klan… should the state of Michigan be allowed to say that they won’t purchase toilet paper from them?
Absolutely not. There should be no political tests, no matter how odious the politics for government contracts.
At its most extreme, then there’s no reason a GOP-run government could say “any company that has ever donated to, or has an employee who has donated to, a Democrat is ineligible for state contracts” in a bid to freeze donations to the opposition party. The only thing that’s been replaced in that sentence from current laws is “The BDS Movement” with “Democrat”. Obviously that would be an infringement of political speech.
Adding in the KKK or other hate groups into the mix doesn’t really muddy the waters— if a company is (reasonably suspected of) not adhering to other laws, like the Civil Rights Act (and any other equivalent state laws about protected classes), then the state would likely be prohibited anyways from continuing with such a contract, so it’s not the same.
https://www.jewishvirtuallibrary.org/anti-bds-legislation
> To date, 35 states have adopted laws, executive orders, or resolutions designed to discourage boycotts against Israel. Separately, the U.S. Congress is also considering anti-boycott legislation
> Tennessee [...] state contracts must include “a written certification that the company is not currently engaged in, and will not for the duration of the contract engage in a boycott of Israel.”
> South Carolina’s state legislature passed legislation banning the state from entering into contracts with companies that participate in certain boycotts.
> Illinois’ state pension announced in December 2021 that it will divest from Unilever, the parent company of Ben and Jerry’s, over the ice cream company’s decision to stop selling ice cream in the West Bank.
Also the line can be blurry with celebrities since they will engage in business deals.
I think it's unacceptable to send the mob after an individual to destroy their life. I think there is more wiggle room when the target is a celebrity who signed up to be a public figure. Same with politicians. Not that it should completely unlimited, mind you, but if someone chooses to be a public figure then they are accepting that some people will be critical of them.
With companies, I don't know if there should be much, if any limit to what gets said. Companies are not people, Mitt Romney's opinion notwithstanding. To me it becomes a moral wrong when there is a human target.
What seems to have changed, from my perspective, is that liberalism has stopped being the values system championed by the left, and instead what we have are two different visions that are both more or less authoritarian.
That said, experience tells me to always get both sides of a story. Can anyone suggest a good representation of the other sides' position?
It’s not a very good argument imo.
https://www.businessinsider.com/battle-armageddon-israel-eva...
The proof comes when you ask them who else are they boycotting, and it's no one. You get even more proof when you start asking them detailed questions about what's going on in Israel and they have no clue. Or they say things that aren't actually true.
The 1% who are intellectually honest about it are easily dwarfed by the 99% who are doing it out of hate.
In all of my time online I've encountered actual criticism of Israel only a handful of times. Under 1%.
One easy way to tell: Are they criticizing all of Israel, or a specific policy?
This has more info: https://en.wikipedia.org/wiki/Three_Ds_of_antisemitism
I've had plenty of arguments here on HN about Israel, and it doesn't seem like most people are just antisemites. Many people have concrete, legitimate criticisms of Israel (and frankly, there's plenty to criticize.)
Sure, some could be motivated by antisemitism, but 99% of people? That doesn't seem right to me. At all.
(E.g. in most arguments, anyone even a little knowledgeable will argue specifically against settlements or against certain actions of the IDF, not just blanket "against Israel existing.")
> and it's no one
Which means they don't boycott other jews owned business, which invalidates your mental gymnastics.
> when you start asking them detailed questions about what's going on in Israel and they have no clue
So it is okay to outlaw boycotting if X country if some of the boycotters deny to share their intent?
I've never understood why this is seen as a good idea. In the spirit of your statement, can you suggest a good representation of why you think this is worthwhile?
There's no natural law that issues should have two sides, and I think forcing everything into that framing is part of why our media discourse is so broken. This also promotes the misconception the truth lies in the middle, which encourages people acting in bad faith to pick extreme positions and skew the average.
Obviously, this isn't exactly the same thing, but it is an example of a US government using the withholding of funding to achieve a policy goal.
[0] https://www.quora.com/Can-the-federal-government-withhold-fe...
These people can and do get fired for saying the wrong thing on social media or getting recorded acting like a jerk in public for example, so the first amendment does not apply to them.
I agree that the government cannot prevent citizens from boycotting but they can prevent themselves from boycotting, what I mean is employees and contractors are part of the state, agents if you will.
The 1st and I believe other amendments use the term abridging:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Termination of employment or contract is not abridging those people's freedoms, they can still boycott. The ACLU's argument boils down to whether or not termination of a contract by the state equals a punishment or if the threat of termination equals a punishment that prevents a person from excercising their freedom.
If it is a punishment or a restriction, then effectively, state employees and contractors can do anything protected by the constitution and keep their jobs. For an extreme example, can a contracor for the state police associate with white nationalists and say things in public like how the police will be on their side in their typical "race war" propaganda, and state will have to maintain their contract? Or can a teacher at an elementary school post online how he likes young girls and not lose his job because that was freedom of speech? The latter one is not political but the former example of a white nationalist arguably is political because one can argue (not that I do) that boycotting israel and desiring war against the jews (white nationalist propaganda) are both free expressions of the person's sentiment even though boycotting is an expression of disagreement and my example is one of anti-semetism.
I think federal employment law should protect these people so they can protest and boycott but I cannot agree that the constitution protects employees and other agents of the state.
The question in both the adoption case and the anti-BDS case is the extent to which the government can use its position as a purchaser to control otherwise legal private conduct.
> Despite the clear precedent holding a boycott constitutes protected expression, the Eighth Circuit ruled against the Times. ... Today, FIRE and the Forum for Constitutional Rights filed an amicus curiae — “friend of the court” — brief in support of the Arkansas Times’ request for the Supreme Court to hear its case.
Fast forward to 2021 and that’s the reasoning they use.
I don’t really care if you disagree with how they view the situation — that’s fine. But the ACLU is logically consistent on this issue.
The ACLU made its name defending the free speech rights of despicable parties on principle. Because, among other reasons, allowing exceptions to the protection of civil liberties terminally all-but-guarantees that such exceptions will be abused in unjust ways.
But there is no longer any principle they stand on. Politically compromised and merely self-perpetuating for the cynical insiders willing to bend the machinery to their selfish ends.
Entropy has taken the ACLU, and it’s just a cancer on the body politic now.
Which ones? Was it the ACLU as an organization, or an employee of the ACLU?
1. https://www.catholicleague.org/the-book-banning-aclu/
2. https://en.wikipedia.org/wiki/Edwards_v._Aguillard https://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_Schoo...
Fighting to stop censorship while also fighting to keep religious texts out of the public school system isn't contradictory to me. Also seems a little disingenuous when the religious right in the US does the vast majority of book banning.
Right, and I think the Catholic League’s framing is disingenuous. From the opinion[1], the ACLU wasn’t trying to ban the textbook, they were saying that teachers shouldn’t be compelled to issue a canned statement to their class which promotes a religious text as an alternative to their scientific curriculum.
[1] https://www.aclu.org/sites/default/files/field_document/asse...
[1] https://www.aclu.org/sites/default/files/pdfs/privacy/pemic_...
It's an attempt to silence organizations by disadvantaging them economically. And we all know that if it wasn't Israel related it'd never fly. Imagine for even one second a company was excluded from a contract because of its stance on gun rights, abortion or gay rights. You'd have either half of the country on your mattress within five seconds.
They claim exactly the opposite:
> Since 2016, 28 states have passed laws requiring individuals and businesses that receive government contracts – from substitute teachers to construction workers — to certify that they will not participate in boycotts of Israel or Israeli settlements in the West Bank.
And they go on to provide examples of individuals being coerced to sign an anti-boycott pledge, not just corporations.
Are you saying the ACLU is making all of that up?
Unless you are willing to actually refute those examples (plural!) as untrue, it is absurd for you to claim that there's no threat to the individual right to boycott. Simply asserting that all such overreaches will eventually and inevitably be corrected by the courts does not mean the rights are not at risk, and being infringed in the meantime, by multiple laws in multiple states.
It seems it was in this case, but for their intervention.
https://eu.cjonline.com/story/news/politics/state/2018/06/29...