A Corrected Harvard Law Review Note Now Accurately Reflects the View of the Dorf/Koppelman/Volokh Brief in the Arkansas Anti-BDS-Law Case

by Michael C. Dorf

A recent Note in the Harvard Law Review (also available here as a pdf) argues that state laws banning boycotts of Israel (so-called anti-BDS laws) cannot fairly be justified by claiming that such boycotts involve illicit discrimination or antisemitism and that therefore they should not be characterized as anti-discrimination laws. I think I might agree with that core claim. After all, although some people who support the BDS movement are motivated by antisemitism, many simply oppose various policies of the Israeli government.

To be sure, some proponents of anti-BDS laws argue that participants in the BDS movement unfairly single out Israel. Why don't the proponents of BDS boycott Russia (which illegally occupies Ukrainian territory), China (which occupies Tibet and has sent over a million Muslims to reeducation camps), or other countries that violate human rights? The singleminded focus on Israel, BDS opponents say, bespeaks a bias.

How widespread is such a bias? Absent solid empirical evidence on that question, I think it is difficult to say whether anti-BDS legislation can be fairly characterized as a species of anti-discrimination law.

Nonetheless, as a policy matter, I oppose anti-BDS legislation and have previously stated that opposition in a blog post just under a year ago and another one that was posted both here and on the Volokh Conspiracy blog last June. Accordingly, I was surprised when I found that the original version of the Note described me and my co-signers of a brief in the Arkansas Anti-BDS Law Case--Professors Andrew Koppelman of Northwestern and Eugene Volokh of UCLA--as "supporters of anti-BDS laws," even though we acknowledged that such laws might well be "unwise, especially when applied to small service providers." Ours was a brief arguing for the constitutionality of anti-BDS laws, not for their enactment.

Thus, I am pleased to report that after we called the error to the attention of the HLR, the editors amended the Note in the online version. They also generously appended the following statement:
A prior version of this Note incorrectly suggested that the authors of the Dorf Brief -- Professors Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh -- are supporters of anti-BDS laws in the text accompanying note 77 and opponents of BDS in note 137.  Dorf, Koppelman, and Volokh do not advocate for or against the laws in their brief, but only evaluate the laws' constitutionality.  The Review regrets the error. 
It's too late to amend the printed versions of the HLR, but I am nonetheless very grateful to the HLR for acknowledging the error and doing what was possible to correct it. I also take some comfort in the fact that these days the electronic versions of journal articles probably attract more readers than the printed versions.

I'll use the balance of this post to say a few words about the substance of our position and how it differs from the way in which it was described before the correction.

There is nothing in what I shall call the DKV (for "Dorf-Koppelman-Volokh") brief that takes a position on the Israel-Palestine conflict, the wisdom of BDS, or the wisdom of anti-BDS laws. Our brief takes a position on one issue, a question of constitutional law: We argue that laws banning boycotts do not, except in a few special circumstances, infringe freedom of speech. You can read the brief for a full explanation or you can read the summary I wrote in the blog post linked above that I cross-posted on VC. I have there main reasons for concluding that boycotts--i.e., refusals to engage in economic transactions--are generally not free speech, so that laws targeting boycotts as such do not generally infringe free speech.

First, the DKV brief best reflects the extant constitutional doctrine. We acknowledge that one can read NAACP v. Claiborne Hardware Co to suggest that boycotting is protected free speech, but we think the case is better read to say only that certain activities that often accompany boycotting (such as advocating a boycott) are protected. That reading is arguably truer to the case itself and better fits with a range of other cases (cited in our brief).

Second, as a matter of first principle, regardless of its motivation, a boycott is a fundamentally economic activity (or perhaps economic inactivity). To treat a boycott as protected free speech is to "Lochner-ize" the First Amendment, which we have good reason to avoid doing.

Third, there is no principled way to distinguish between a purchase boycott and a sales boycott. If there is a free speech right to refuse to buy goods or services from a seller on political grounds, then there is a free speech right to refuse to buy labor on political grounds and a free speech right to refuse to sell goods or services to a buyer on political grounds. "Purchase" and "sale" are simply different ways of describing the same transaction, as is apparent in a barter economy and remains true in a money-based economy.

A huge swath of anti-discrimination law--including employment discrimination law and public accommodations law--relies on the ability of government to override individuals' political or other preferences regarding whom they will engage in economic transactions with. Anti-discrimination law in the employment context (justifiably) restricts the freedom of buyers of labor to refuse to deal. Anti-discrimination law in the public accommodations context (justifiably) restricts the freedom of sellers of goods and services to refuse to deal. Anyone who cares about preserving anti-discrimination law will be very very worried about a robust constitutional right to boycott.

That, in a nutshell, is the argument against recognizing a federal constitutional right to boycott under the First Amendment. I nonetheless think that, as a policy matter, lawmakers oughtn't to pass anti-boycott laws, for while there is no principled means to distinguish purchase boycotts from sales boycotts for constitutional purposes, there are pragmatic grounds to draw such a distinction, including the difficulty of enforcing anti-consumer-boycott laws. I also value many aspects of economic freedom as a sub-constitutional matter, including, say, my freedom as a vegan to "boycott," that is to say, not purchase, animal products.

In addition, as Prof Koppelman argues today on Balkinization, anti-BDS laws, like BDS itself, are little more than "symbolic gestures that have nothing to do with the actual, urgent problem of enabling Palestinians and Jews to live together in peace."

How do I reconcile my policy opposition to anti-BDS laws with my view that such laws are constitutional? I don't need to, because here, as with many other subjects, it is possible to take a policy position without thinking that policy position is constitutionally required.

Justice Scalia used to say that there are many laws that are "stupid but constitutional." I disagreed with him about some of the particular laws in that category, but he was surely right about the existence of the category itself. Thinking a law is constitutional is perfectly consistent with also thinking the law is stupid or bad. For example, I think the federal government should not subsidize the meat and dairy industries, but I don't think the Constitution forbids such subsidies.

Indeed, one's views about a controversy might ping-pong between support and opposition, depending on what level of issue one is addressing. As I wrote on my blog last year, one's views about an underlying conflict should not simply pass through to the next level of analysis, or the one after that, etc. I explained:
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.
Long ago I wrote that "[t]here is no such thing as thinking like a lawyer. There is only clear thinking and confusion." I still believe that to be true, with the important caveat that lawyers should be very careful to avoid a particular kind of confusion that involves simply equating one's policy views with one's constitutional views.

To be sure, legal realists taught us that there is no impermeable barrier. Policy views have an important impact on constitutional or other legal views--especially in the sorts of contested cases involving vague or otherwise underdeterminate text that reach appellate courts. But that doesn't mean that one's view of the constitutionality of a law reflects nothing other than one's view about the law's wisdom as a policy matter.