Monday, February 25, 2019

Anti-BDS Laws, Anti-Discrimination Laws, Subjective Legislative Intent, and the First Amendment

by Michael C. Dorf

Earlier this month, Eugene Kontorovich wrote an op-ed in the Wall Street Journal calling the ACLU hypocritical for arguing that state laws barring those who participate in the BDS boycott of Israel from doing business with the state violate the First Amendment, while at the same time arguing that those who--like the Masterpiece Cakeshop baker--discriminate on the basis of sexual orientation or other characteristics are not engaged in free speech. In a short post on Balkinization, Andy Koppelman agreed. Koppelman thinks that neither the Masterpiece baker nor the BDS participants should have winning free speech claims. He writes: "Conduct often has semantic significance.  But conduct that sometimes has semantic significance isn’t speech.  That was true in the case of the Colorado baker. It’s true [of the anti-BDS laws] as well." 

Responding to both Kontorovich and Koppelman in an essay cross-posted on Balkinization and TakeCare, Amanda Shanor says that there is a crucial difference between anti-discrimination laws like the one at issue in Masterpiece Cakeshop and anti-BDS laws: "Public accommodations laws aim not at a particular political viewpoint—refusals to sell to white customers, for example, are equally prohibited as refusals to sell to black ones—but instead they aim to ensure equal opportunity to participate in" the economy and social life; whereas anti-BDS laws are "about silencing a particular form of dissent because of its viewpoint."

Which side of this argument is right? The short answer is both--kinda. For the longer answer, keep reading.

Let's begin with the basics. Free speech doctrine mostly does not turn on whether an individual is speaking or even whether some activity in general counts as speech. Rather, free speech doctrine chiefly focuses on whether a law targets some activity because of its expressive character. Thus, a law barring the lighting of a fire in public and a law barring public burning of a US flag both might both be applied to a concrete instance of flag burning, but only the latter would violate the constitutional right to free speech -- at least absent evidence that the public fire law was being applied discriminatorily against flag burners.

So while Koppelman is right that not all conduct with semantic significance counts as speech, that doesn't resolve the matter. If, as Shanor argues, the anti-BDS laws were enacted to suppress the message expressed by BDS participants, then such laws would infringe free speech. And conversely, if anti-discrimination public accommodations statutes were enacted to ensure equal access regardless of any message expressed by particular individuals who want to discriminate, then public accommodations statutes don't infringe free speech.

Shanor says--and I do not read either Kontorovich or Koppelman to disagree with the claim that--public accommodations laws do not target any message that might be expressed by people who want to deny services in violation of such laws. I agree. So let's set that aside and focus on whether anti-BDS laws target boycotts of Israel because of the message that BDS expresses. Shanor says they do. Is she right?

Focusing on the Arizona law, which has been the subject of litigation, Shanor writes:
Arizona’s law is about silencing a particular form of dissent because of its viewpoint. During the legislative process, multiple legislators, including the Arizona act’s primary sponsor, expressed their opposition to the BDS campaign and their intent to undermine the BDS movement. This aim is reflected in the text of the law. It does not, like public accommodations laws, ban refusals to serve broad classes of people. Instead, it targets specifically—and only—activities “intended to limit commercial relations with Israel” (not Russia, England, Middle Eastern countries, or all foreign countries). Moreover, it specifically targets political and associational boycotts, requiring government contractors to desist from boycotts taken “[i]n compliance with or adherence to calls for a boycott of Israel.” These features make clear that the legislative objective was to suppress free expression. Arizona’s law is transparently aimed at quashing the political viewpoint of the Boycott, Divestment, Sanctions movement (as the name “anti-BDS law” suggests).
Insofar as Arizona's law or any other state law penalizes calling for a boycott, that's a free speech violation. However, the Arizona law doesn't deny contracts to entities that call for boycotts; it denies contracts to entities that boycott. Much of Shanor's evidence seems consistent with a legislative aim of discouraging commercial non-dealings with Israel regardless of the entity's motive for boycotting Israel. And while some, perhaps many, firms might boycott Israel to express a viewpoint, as Kontorovich correctly says, a firm might have non-expressive reasons for refusing to do business with or in Israel. For example, "Airbnb, the most prominent U.S. company to announce an Israel-related boycott, says its decision was entirely apolitical and that it opposes boycotts of Israel."

In the paragraph quoted above, Shanor also argues that the Arizona law is content-based, because Arizona's law does not apply to firms that refuse to do business with other countries. However, that conclusion doesn't follow from the law's selectivity. Trade laws treat commercial dealings with different countries differently, but they don't thereby implicate free speech.

One way that Shanor's argument would succeed is if a boycott is inherently expressive. If so, then a law banning a boycott inherently targets expression. Is a boycott inherently expressive?

There is some doctrinal support for the idea that boycotting itself--as opposed to the motivation, expression, and expressive association that often accompany boycotting--is expressive. Consider  NAACP v. Claiborne Hardware Co., which Shanor cites. It is possible to read that case to say that boycotting is inherently expressive. However, I think the better reading is that many but not all elements of political boycotts are expressive. The NAACP Court says that the political "boycott clearly involved constitutionally protected activity" and then identifies those elements as "speech, assembly, association, and petition." Notably, the Court does not include "commercial" dealings or non-dealings among the expressive elements of a boycott.

That said, I think the doctrinal question could fairly be said to be open, but I would not want the Court to say that boycotting--refusing to do business--is inherently expressive. If it is, then the baker in Masterpiece Cakeshop and indeed anyone who wants to boycott LGBT customers or customers protected by any other form of anti-discrimination law have prima facie speech protection. So would employers who want to "boycott" female, Muslim, or African American prospective employees. I don't want to say no distinctions could be drawn between consumer boycotts and other kinds of boycotts, but I think down that road lies trouble. If Shanor's point is that public accommodations laws and anti-BDS laws are categorically different, then saying boycotting is inherently expressive invites a heavier, not a lighter, justificatory burden.

So far, none of Shanor's arguments quite works, but here's a way that Shanor could be right: there could be evidence of illicit, i.e., censorial, subjective motivation on the part of the Arizona or other legislators who adopt anti-BDS laws. Although the Court said in US v. O'Brien that an otherwise permissible law does not violate the First Amendment due to illicit legislative motives, that principle has been undermined by subsequent cases, especially equal protection cases. So it's possible that any particular anti-BDS law could be found to violate the First Amendment based on a showing that but for censorial motives it would not have been enacted.

Maybe Shanor or others can make that argument successfully with respect to the Arizona law or some other anti-BDS law, but doing so would require supplying more evidence than I've seen so far. The district court opinion preliminarily enjoining the Arizona law provides some evidence of censorial motive, but it does not engage in the kind of counterfactual reasoning necessary to decide whether that censorial motive was a but-for cause of the law's enactment. Thus, although I think it is possible that particular state anti-BDS laws could be invalid based on the illicit censorial motives of legislators, it does not appear that Shanor or anyone else has (yet) turned up sufficient evidence to support that sort of conclusion.

Speaking of motives, readers might want to know my motives. Do I have a hidden agenda? I don't think so, but I suppose I could be hiding one even from myself. In any event, here are my views:

I favor anti-discrimination/public accommodations laws that include protections against discrimination based on sexual orientation and gender identity. I think that, as a constitutional matter, expression-based exceptions and religious exceptions to these and other anti-discrimination laws generally are not required, because, as Shanor notes, such laws don't target expression or religion. However, I recognize that there are some hard cases at the margins, because even non-targeted laws can substantially burden expression (or religion) in ways we ought to care about (as I argued a long long time ago), so that there are rare circumstances in which I would support limited exceptions.

Meanwhile, I despised the Netanyahu government long before its leader decided to embrace racists. I oppose Israel's settlement-building policy, its occupation of the West Bank, and many other Israeli policies. However, I do not support BDS for a combination of reasons, including the fact that I do not wish to make common cause with the substantial fraction of BDS activists and their allies who do not distinguish between opposition to Israeli policy and opposition to Israel's existence. That said, I think that people who take a different view should be allowed to engage in boycotts as a form of political activism--even though boycotting is not inherently speech. Certain kinds of liberty should be respected, even if they do not qualify for constitutional protection. Accordingly, I oppose anti-BDS legislation on policy grounds. However, unwise policy does not necessarily violate the First Amendment.


Shag from Brookline said...

How would textualism address a statute the text of which does not disclose this from the post: "Thus, although I think it is possible that particular state anti-BDS laws could be invalid based on the illicit censorial motives of legislators, ...."? Collective motives? Rather than enact anti-BDS legislation, perhaps a legislature could speak with an anti-BDS resolution as a form of legislative free speech.

This quote in the post: "Airbnb, the most prominent U.S. company to announce an Israel-related boycott, says its decision was entirely apolitical and that it opposes boycotts of Israel." Is this speaking with forked tongue? Might it encourage "apolitical" responses to public accommodation laws, not just on religious grounds?

One of the joys of the 1st A's speech clause is listening to the views expressed on this issue. We're still a democracy.

Joe said...

Interesting as usual.

The situation brings to mind Crosby v. National Foreign Trade Council, where a unanimous opinion struck down a state law boycotting Myanmar (Burma) on Supremacy Clause grounds. I found the ruling somewhat troubling. Don't know if any similar conflict arises here.


BTW, the Supreme Court today via a brief per curiam (Sotomayor concurred w/o opinion) rejected the 9CA counting Judge Reinhardt's vote in a case that came down after he died. I wonder who is the leader of the Warren Court (or Resistance) in Exile in the lower courts these days.

Michael C. Dorf said...

Thanks for these comments.
On the Reinhardt ruling, I plan to write something later this week arguing that while the bottom line is probably right, the issue is more complicated than the Supreme Court made it appear. I can't think of any lower court judges in the Reinhardt mode. Justice Sotomayor is probably the closest.

Joe said...

I thought the whole thing a tad too dismissive so appreciated Sotomayor's separate vote.

egarber said...

Great post. As a Pink Floyd guy, I have followed this issue pretty closely - Roger Waters is pro BDS, and he has been in the middle of several intersections related to Mike's post.

So here's a scenario:

During his last tour, a few municipalities tried to pass ordinances denying Waters access to public arenas, citing his association with BDS. Given that Roger's goal as an artist is entirely speech related - raising awareness as an activist, trying to push the conversation, etc. - it seems difficult to conclude those bans weren't motivated by a desire to quell expression. Further, his concerts themselves are saturated with images of downtrodden people across the world, including Palestinians. So the effect of such bans would have been the silencing of specific speech.

Without his association with BDS, he'd have a clean First Amendment claim, if say, a municipality cited the content of his show in support of keeping him out. It therefore seems off to me that layering on formal association (with BDS) could muddy the clarity, giving the city a sort of camouflage to attack his speech; with Roger at least, there is no severing a physical boycott from his desire to deliver a message.

Any thoughts here around this context? Musicians joining boycotts to send a message?

As for the comparison with the Colorado baker, it seems to me there’s another distinction that should carry some weight: boycotting a government entity (like the Israeli government) because of its actions, vs. discriminating against an individual because of innate traits. In the context of government burden, I think there is a clean compelling interest with the latter dynamic, walled off from speech interests. With the former, it seems impossible to decouple such boycotts from a serious speech interest. Just a different animal, imo.

Suppose Georgia passed a law denying me certain tax credits because I belonged to something called “Vegans against the Beef Industry.” Would that not be a state effort to quell speech / association? Isn’t “freedom of association” a component of Free Speech doctrine as well? Rather than prop up a new animus doctrine here (against Vegans), it would seem much cleaner to protect my expressive interest as a matter of precedent, etc.

Michael C. Dorf said...

Targeting Waters pretty clearly targets speech.

CEP said...

Part of the difficulty with a pure free speech analysis of this sort of thing is the crossover with other parts of the First Amendment, particularly the Free Exercise clause (which, as an atheist, I find endlessly annoying and endlessly amusing). The problem here is even defining when there's an intersection between "speech" and "exercise" in the first place, let alone what to do with/at that intersection. I have a narrower view of what is legitimately protected by the concept of free exercise than do most of its proponents (or the courts at present)... but then, I've seen the casualties that result in some countries from an over-expansive view of what constitutes and hides behind "exercise of religion" to a minority's detriment. To my incomplete knowledge, Justice Brennan was the last one who had the dubious opportunity to do so, and the most-prominent one would have been Justice Jackson.

Once something extends to general behavior, unless the "infringed" behavior constitutes mandatory doctrinal behavior I wouldn't apply the Free Exercise clause. An example of the latter: An observant Jew or Muslim who does not frequent Bob's Palace o' Pig Barbecue, not even for the tasty chicken (due to the extensive use of leaf lard for everything). The cakeshop case falls outside of where I'd limit the Free Exercise Clause, because unless that religion is particularly vile a claim that "you shall not, in your ordinary course of business, enable nonreligionists to celebrate a rite that is inconsistent with our religion even though they're not claiming to be in our religion" IS NOT mandatory, doctrinally prescribed conduct.

David Bernstein said...

As I've blogged, the closest analogy to anti-BDS laws is not Masterpiece Cakeshop but FAIR v Rumsfeld. Like anti-BDS laws, there is no reciprocity, the law banned universities from boycotting the military if they wanted federal contracts, period. Shanor needs to explain why this isn't directly on point.