Some state governments are legislating against the Boycott Divestment and Sanctions (BDS) movement.
This post first appeared on Russia Insider
The ACLU thinks boycotts are speech. So do some federal courts. They think all of the anti-BDS legislation being adopted by state governments of late is unconstitutional. They’re wrong. Although boycotts may be symbolic of an idea or a principle, or may contain some latent political message, almost all actions can be understood in this way. All actions can't be constitutionally protected free expression, however.
This is to say nothing about the wisdom of the many anti-BDS state laws currently cropping up all over America, which prevent government contractors, affiliates, and those receiving state funds or support, from boycotting Israel. It should be noted that these state governments can not discriminate against those who merely advocate for boycotting Israel or Israeli goods. Nor can they demand that contractors or like parties sign loyalty oaths to Israel, or anything to this effect. Such laws would be clear First Amendment violations.
Even if, like myself, you don't personally support the BDS movement or its goals, it is a pretty essential liberty to be able to spend one’s money in the way one sees fit and according to one’s own conscience. These state laws are therefore unthinkable, as far as I’m concerned. Curtailing the basic economic rights of Americans, including the right to boycott, is simply not the way to go about defending Israel or her interests.
Of course, there is ample room for disagreement on the subject of whether these laws are good public policy. It is perhaps a bit odd, even troubling, that state legislators would be so fiercely loyal to a foreign regime, but it is also somewhat understandable given the strength and duration of the US-Israel alliance. State government attempts to protect the interests and the legitimacy of the Jewish State are certainly not plainly indefensible acts. Generally, state governments are given the discretion and the power to regulate economic activity of this nature, and to place restrictions on who they subsidize and contract with. However, whether anti-BDS laws are wise or unwise policy is a separate question from whether such laws are unconstitutional.
The Unconstitutional Conditions Doctrine prohibits the government from conditioning government benefits or contracts upon the surrender of bona fide constitutional rights. But here’s the thing: the Supreme Court has never declared economic boycotting a constitutional right. This is why the Unconstitutional Conditions Doctrine is a dubious basis upon which to contend that anti-BDS legislation is plainly unconstitutional. In NAACP v. Claiborne Hardware Co. the Supreme Court ruled that states can not prohibit the mere peaceful advocacy of boycotts. Nevertheless, prohibiting peaceful advocacy (read: speech) is quite different from prohibiting boycotts themselves (read: economic actions). In recent years, some federal judges have used mere dicta from the Claiborne case to declare boycotts a constitutional right (Koontz v. Watson), thereby striking down anti-BDS legislation and legislation like it. These judges are stretching the old high court ruling beyond what was actually ruled.
Given the nature of politics-driven economic boycotts in recent years, federal courts find themselves in a particularly awkward position. Prevailing leftist attitudes in America have become extremely hostile to freedom of speech. In recent years, many, if not most, boycotts have been driven not by a desire to change the immoral behaviors of certain market players, but by a primitive, quasi-totalitarian desire to drive alternative and dissenting voices out of the marketplace of ideas (words and ideas are not immoral, and indeed can not be). The political left is using boycotts to undermine the normative, ethical principle of free speech (which extends well beyond the law or legal rights), narrowing the range of legitimate political debate, and vitiating American democracy thereby. Consider the pressure right now being placed on Fox News by advertisers and left-wing advocacy groups to drop Tucker Carlson. The supposed free market has revealed itself to be as much the enemy of freedom of speech in recent years as tyrannical governments of yore, and also of the present, in third world backwaters and even first world Cultural Marxist dystopias.
Thus, should courts rule that economic boycotting is a constitutional right, they would find themselves in the ignominious, essentially paradoxical position of foolishly protecting non-speech (boycotting) which is all too often in the business (pun intended) of curtailing, suppressing, and censoring the actual speech (any ideas the left considers “hateful”) of far too many public intellectuals and ordinary Americans. The whole purpose of the First Amendment is to expand the public dialogue, to enable Americans to debate critical issues so that democracy can actually function and Americans can actually choose their own direction. It is not to empower bigots who wish to constrict public debate to the point that the only ideas which can be openly expressed are those which reflect the delusive orthodoxies of the leftist power structure here in America.
Economic boycotts are not a liberal or moral response to speech one doesn’t like. Counter-arguments are the only morally defensible response to arguments one doesn’t like. Iconic Supreme Court Justice Louis Brandeis famously made this very point many, many decades ago (“...the remedy to be applied is more speech, not enforced silence”). Thus, should the high court rule that economic boycotting is “speech”, which it’s not, since it is pretty clearly just economic activity, such a ruling would be an unwitting assault on the spirit of past precedent, on Brandeis’ own ingenious and compelling words, words which constitute the foundation of the Supreme Court’s own free speech jurisprudence. After all, if reasoned counter-arguments (“good ideas” / “more speech”) are the only proper remedy for bad ideas, then extreme market pressure (via boycotts), like government power, can not be the proper remedy for bad ideas.
Granted, the legal issue is fairly complex and delicate. However, should appeals concerning this particular issue make their way to the Supreme Court, and they likely will within the next few years, this article has carefully laid out the many reasons why the high court should not deem economic boycotts a constitutional right. Boycotts are not speech. They are attempts to control and coerce others via economic pressure. They are something other than mere expression.
What’s more, if the federal legislature wishes to create a general right of economic boycott, it can do so by passing legislation to that effect. With that said, the legislature would do well to exclude from legal protection those boycotts which aim to silence Americans, or to have certain ideas or certain thinkers banished from the public square. Boycotts of this nature are simply not worthy of legal protection.
This post first appeared on Russia Insider
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