January 21, 2019
The American Civil Liberties Union (ACLU) is campaigning against existing and proposed federal and local laws that would deter boycotts of Israel popularized by the boycott, divestment, and sanctions movement (BDS). Their argument is that requiring all businesses who want to contract with the state to certify that they do not engage in a boycott of Israel violates the free speech clause of the First Amendment of the Bill of Rights.
The ACLU’s challenge of such a law in Arizona is now before the Court of Appeals for the Ninth Circuit. The Brandeis Center, of which I am president, has filed a friend-of-the-court brief supporting the constitutionality of Arizona’s law; the brief was written largely by Akiva Shapiro, a partner in the New York office of Gibson, Dunn & Crutcher, and this op-ed borrows liberally from that brief.
Federal, state, and local governments across the United States regularly and appropriately use conditions in government contracts to promote equality under the law, combat discrimination, and ensure that public funds are not used for illegal or invidious purposes. Conditions on contracting are a pillar of anti-discrimination laws at all levels of government. The First Amendment does not require the government to subsidize discriminatory conduct.
However, these regulations only target discriminatory conduct, not speech,by state contractors. Contractors may speak passionately, associate, and advocate openly in any forum and on any subject, even an anti-Israel boycott. They may also forego state contracts if they choose to engage in an active boycott of Israel.
The Arizona legislature found “Companies that refuse to deal with United States trade partners such as Israel, or entities that do business with or in such countries, make discriminatory decisions on the basis of national origin that impair those companies’ commercial soundness.” Arizona joined 25 other states that have imposed similar conditions on those seeking government contracts. A majority of these states require contractors to certify their compliance. The federal government places similar anti-discrimination conditions on funding public and private universities.
The Supreme Court has repeatedly confirmed government power to use funding as an incentive or disincentive, even to affect behavior that government may not regulate directly. In a decision rendered in 1998, the Supreme Court said “the government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake” (National Endowment for the Arts v. Finley). And in 2003, the court ruled that a condition requiring content-filtering software for libraries that applied for government funding did not violate the First Amendment because it did not “penalize libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access” but only “reflects Congress’ decision not to subsidize their doing so” (United States v. American Library Association).
Discrimination is not protected speech. Private discrimination on the basis of national origin, religion, gender, and other classifications is prohibited in employment and public accommodations by the Civil Rights Act of 1964. A boycott focusing on a single country discriminates on the basis of national origin by categorically treating that country’s products and businesses as different from all others, regardless of their relative merit.
Discrimination today against the Jewish people is often disguised as opposition to the State of Israel. Boycott campaigns have been a traditional outlet for anti-Semitism. Nazi encouragement resulted in boycotts of Jewish businesses in Germany in the 1930s. The Nazi regime’s first nationwide action against Germany’s Jews was a boycott.
The Brandeis Center’s founder, Kenneth Marcus, noted, “the pre-Nazi, Nazi, Arab League, and BDS boycotts all share common elements: they seek to deny Jewish legitimacy or normalcy as punishment for supposed Jewish transgressions.” Marcus has also observed that some proponents of BDS “act out of conscious hostility to the Jewish people; others act from unconscious or tacit disdain for Jews; and still others operate out of a climate of opinion that contains elements that are hostile to Jews and serve as the conduits through whom anti-Jewish tropes and memes are communicated.”
The ACLU’s position rests on a perverse interpretation: The ACLU argues that government must subsidize discriminatory conduct. Such a rule is not required — or even supported — by the First Amendment. It conflicts with a deeply embedded web of federal, state, and local anti-discrimination laws. Government must have the power to discourage discriminatory boycotts by prescribing non-discrimination conditions in government contracts.
By Alyza D. Lewin