Anti-BDS legislation has gained traction in both Congress and state legislatures over recent years, and, thus far, nearly half of U.S. states have passed anti-BDS (Boycott, Divestment, and Sanctions against Israel) legislation. Some have suggested that these bills conflict with the First Amendment’s right to free speech, and, perhaps most prominently, the American Civil Liberties Union (ACLU) has gone so far as to file a lawsuit challenging Arizona’s anti-boycott legislation on First Amendment grounds. Late last year the ACLU filed a nearly identical lawsuit challenging a similar Kansas anti-BDS statute. While the free speech clause of the First Amendment is indeed the cornerstone of a thriving democracy, the ACLU’s legal argument is deeply flawed and rests on a fundamentally erroneous characterization of Arizona’s statute.
ACLU filed its first amendment challenge on behalf on Arizona attorney Mikkel Jordahl. Mr. Jordahl, who engages in a personal boycott of Israeli products, or of companies who support Israel’s occupation of Palestinian territories, was asked to certify that his law firm, Mikkel Jordahl P.C., does not engage in a boycott against Israel when it entered into a contract to provide legal services for the state. Mr. Jordahl refused to sign the certification—though it in no way affected his personal boycott activities—and filed suit. The ACLU, on behalf of Mr. Jordahl, alleges that the Arizona law violates the First Amendment’s guarantee of free speech.
To understand why Arizona’s anti-BDS law passes muster under the First Amendment, it is first important to understand what it regulates, and, more importantly, what it does not. Though the ACLU has elsewhere characterized anti-BDS statutes as an “assault” on the right to boycott, these statutes—or similarly situated state measures, such as the Kansas bill— do not prohibit anyone from supporting or engaging in a boycott of Israel. Far from being unprecedented, they merely constitute a commonplace anti-discrimination restriction on government contractors. In Arizona, for example, the bill solely prohibits state entities from entering into a contract with a company—such as a sole proprietorship or a corporation—that fails to certify that it is not currently, and, for the duration of the contract, will not in the future engage in a boycott against Israel. To clarify, the Arizona bill does not apply to individuals, nor does the bill in any way restrict BDS activity—private individuals who wish to express their distaste with Israel or its policies, even through a boycott, may do so freely. Companies, too, are perfectly free to support or engage in a boycott of Israel, but may lose out on state contracts if they themselves discriminate against Israeli companies for non-business reasons. The bill, in other words, does not prohibit anyone from expressing themselves, even through a boycott; it merely reflects the state’s policy of refusing to support with taxpayer dollars a company that discriminates on the basis of national origin.
Given the statute’s limited scope, the ACLU’s argument that the bill unduly restricts freedom of speech flies in the face of decades of First Amendment jurisprudence. Courts have time and again expressly distinguished between constitutionally protected speech on the one hand, and commercial conduct on the other. Commercial entities do not get a free pass from anti-discrimination statutes, such as the anti-BDS bill, simply because their discriminatory conduct reflects political views. Whereas companies and their owners have a constitutional right to freely express their opinions, including their disdain of Israel and its policies, this right does not necessarily extend to their commercial conduct—discriminating against Israeli companies. In other words, while a company’s rationale for why it boycotts Israeli companies is protected speech, the underlying discriminatory conduct—which is what the Arizona anti-BDS bill regulates—is not. Were this not the case, courts would find unconstitutional similar state statutes that limit government funding of contractors who discriminate on, say, the basis of sexual orientation or gender. Indeed, while under the First Amendment businesses are free to express their distaste against, or even boycott, Jews, women, and LGBTQ persons, few would argue that a state or the federal government could not pass legislation that prohibits public entities from retaining such an organization as a contractor. Though the Arizona statute deals with national-origin discrimination, not with racial or sexual orientation discrimination, the content of the discriminatory behavior is irrelevant for first-amendment purposes. It is therefore unsurprising that courts have upheld anti-boycott measures in other contexts—indeed, even harsher ones.
This of course does not necessarily mean that any anti-BDS legislation is automatically compatible with the First Amendment. There is serious doubt as to the constitunality of measures that prohibit state entities from retaining companies who merely express support of a boycott but do not themselves engage in one. So, too, would it be difficult to defend a measure that requires individuals to certify that they do not support BDS as a pre-condition to public employment. What should be self-evident, however, is that a state does not violate the First Amendment by refusing to subsidize discriminatory conduct by commercial entities.