Why Is It The New State Anti-BDS Laws Don't Violate The First Amendment Right of Free Speech?

The BDS Movement has demonstrated over and again its dedication to free speech -- its own free speech -- to the extent of protesting against pro-Israel speakers and events, with one goal:

Depriving them of their free speech.

For example, here is a video of anti-Israel members of the Palestine Solidarity Committee at the University of Texas at Austin last November during an event held by the Israeli Studies Department:






Sometimes, instead of waiting for the invited speakers to arrive, these BDS groups bully their way to have the speakers uninvited.

Legal Insurrection recently had a piece about an Israeli filmmaker disinvited at Syracuse U: “BDS faction on campus will make matters very unpleasant”, when Israeli filmmaker Shimon Dotan was coming to Syracuse University next March to screen his film "The Settlers" -- a film that is critical of Israel.

Shimon Dotan. Credit: Legal Insurrection

Prof. M. Gail Hamner, who initially invited Dotan, wrote him a letter dis-inviting him, writing in part:

I now am embarrassed to share that my SU colleagues, on hearing about my attempt to secure your presentation, have warned me that the BDS faction on campus will make matters very unpleasant for you and for me if you come. In particular my film colleague in English who granted me affiliated faculty in the film and screen studies program and who supported my proposal to the Humanities Council for this conference told me point blank that if I have not myself seen your film and cannot myself vouch for it to the Council, I will lose credibility with a number of film and Women/Gender studies colleagues. Sadly, I have not had the chance to see your film and can only vouch for it through my friend and through published reviews. [emphasis added]

Clearly, a significant reason for Hamner backing down is the pressure of the BDS group and the "unpleasantness" that group will cause.

Over the few years, about a dozen states have passed legislation banning government employed contractors from supporting boycotts against Israel -- and other states are also considering such bill as well.

Back in June, New York Governor Cuomo went a step further, signing an executive order ensuring that no state agency or authority promotes boycotts of Israel and New Jersey recently did the same.

In response, those supporting BDS are crying foul and claim that their first amendment rights to free speech are being infringed upon.

Marc A. Greendorfer addresses this issue directly, writing in the Cardozo Law Review about The Inapplicability of First Amendment Protections to BDS Movement Boycotts.

He compares the issue of anti-Israel boycotts with the case of the Longshoremen who in 1970 took the US government's partial boycott of the USSR, following its invasion of Afghanistan -- and decided on their own to expand it.

In his paper, Greendorfer concludes:

Congress and various states have made it clear that foreign boycotts of Israel cannot be tolerated. Enforcement of these laws clearly supersedes any First Amendment rights that may be claimed in connection with participation in the BDS Movement. As the Longshoremen court noted, the prohibition on boycotts does not leave individuals with no voice to express opinions about foreign affairs. However, engaging in activities like the promotion of foreign boycotts that interfere with government policy and the free functioning of commercial markets is not protected by the First Amendment.

Regulation of BDS Movement boycotts in the United States has ample precedent, with the Longshoremen case being most analogous.

Moreover, regulation of these boycotts is necessary to preserve the federal government’s exclusive power over the conduct of foreign affairs and to protect the integrity and efficient functioning of American commercial markets.

There are 3 parts to his rebuttal to boycotters who claim their freedom of speech is being interfered with by this new state legislation:

• The legislation in question addresses their actions, not their right to express their opinions
• First Amendment rights are not protected when they are used to interfere with commercial markets
• First Amendment rights do not entitle boycotts which impinge upon the federal government's power to conduct foreign affairs

Eugene Kontorovich, a Northwestern University Law Professor who has advised lawmakers on drafting anti-BDS bills, explains why boycotts are not an issue of free speech:

He distinguished between biased speech and activity. The new legislation “is not about the viewpoints a company holds. This is about discriminatory activity. A company can hang a banner saying ‘long live Palestine, out with Israel,’ and if it’s not actually engaging in discriminatory conduct” by boycotting Israel, then it’s fine, he said. “None of these statutes prohibit any speech by anyone,” said Kontorovich. “But when a state deems certain conduct discriminatory, even if it’s not illegal, they can say they don’t want to contract with it.”

Eugene Kontorovich. Source: Twitter Page

In another article, Boycotting Israel isn’t free speech, Kontorovich goes deeper in explaining the limitations of protected free speech. He notes that:

• The First Amendment protects speech, not conduct. Thus in Rumsfeld vs. FAIR, The Supreme Court held that the government can deny federal funding to universities that boycott military recruiters. The fact that the boycott was based on political considerations, did not automatically make it protected speech -- and the US Government could take action against the conduct.
  
  
• In the same way, the act of boycotting Israel does not in and of itself express any political viewpoint. When a company boycotts Israel, it may be doing so for any of a number of reasons: to prevent further harassment from the BDS movement, to curry favor with Arab states or because of anti-Semitism. Without the company explaining its actions, those actions have no message -- and that is why a refusal to do business does not constitute speech.
  
  
• In fact, bans on boycotts against Israel already exist. Federal law bans participation in certain kinds of boycotts of Israel — those sponsored by foreign countries — and no one questions the constitutionality of those bans.
  
  
• The state anti-boycott bills do not actually criminalize or prohibit any conduct, let alone speech. The First Amendment allows states to place conditions on companies that want to do business with them. The Supreme Court has repeatedly held that conditioning government money on compliance with anti-discrimination policies does not violate the First Amendment.

Not that the fact of law will have much impact on the BDS Movement. We still read about anti-Israel groups, especially on college campuses, who have no problem disrupting pro-Israel events and denying speakers their right to free speech. It is unlikely such groups will recognize any legal limitations to their disruptions. But in the meantime, it is long overdue for college and university administrations to take the steps necessary to protect the rights of those being bullied and harassed by anti-Israel haters.

But that is a separate topic for another time.


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