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.