Eugene Volokh is Gary T. Schwartz Distinguished Professor of Law at the University of California, Los Angeles (UCLA) School of Law, where he teaches First Amendment law. He spoke to an August 25th Middle East Forum Webinar (video) about an amicus curiae ("friend of the court") legal brief filed on behalf of himself and two university professors regarding the constitutionality of anti-BDS (Boycott, Divestment and Sanctions) laws that oppose the economic warfare campaign against Israel. The following is a summary of Volokh's comments:
Constitutional law encompasses the fundamental principles by which the U.S. government exercises its authority safeguarding the rights of the people. The protection of human rights and civil liberties are key principles of U.S. law. Anti-boycott and anti-discrimination laws, which are consistent with these protections, are generally constitutional. The First Amendment of the U.S. Constitution protects the right of freedom of speech as well as the right to "petition the government for a redress of grievances." The debate regarding what constitutes discrimination and boycotting rests on permitted speech versus conduct. "There's a First Amendment right to speak, but there's no First Amendment right to refuse to deal with someone."
Anti-BDS laws, "if perfectly crafted, [are] constitutionally sound," as evidenced by the fact that they were upheld last year by nearly all judges in the federal appellate court of the Eighth Circuit, with only one dissenter. The issue will advance to the Supreme Court only if other appellate courts disagree, but for now, the following cases are an "accurate summary of Supreme Court precedent [and] also consistent with the leading authority from the lower courts on this very subject."
The Supreme Court's rulings in cases of "refusal to deal with someone" include the following:
- A limo driver who refuses to serve a same-sex wedding party could claim to "boycott" the event, but it is "discrimination" because "driving is not speech," and therefore there is no constitutional right for such refusal since it is not protected by the First Amendment. On the other hand, a web designer's refusal to design a website for a same-sex wedding is constitutional because web design is considered speech.
- A store refuses to sell to Catholics, asserting a right to boycott supporters of the Catholic Church. While the store is entitled to its view, it is not protected by the First Amendment. A company has no constitutional right to boycott a business or refuse to hire someone based on "political affiliation." Half the states agree this is discrimination because whether it is called "boycott" or "discrimination," the "refusal to deal is not constitutionally protected."
- Similarly, banks do not have the constitutional right to close customer accounts based on their patrons' political affiliation or religion, but in most jurisdictions doing so is not illegal. "A lot of the things ... we're allowed to do, we ... do them not because they're constitutionally protected, it's just because no law prohibits it."
The Supreme Court case, Rumsfeld v. FAIR, 547 U.S. 47 (2006), provides the foundation for anti-discrimination laws nationwide and is the strongest case regarding "refusal to deal." A university claimed it had the right to exclude military recruiters from campus in a "limited boycott" because of the military's discrimination at that time against gays and lesbians. Federal law in this case required the university to comply because "refusals to deal are not protected by the First Amendment," even though the law only protected the government and recruiters, not others.
Challengers claiming anti-BDS laws are unconstitutional cite the case of NAACP v. Claiborne Hardware Co., a civil rights boycott of a white-owned business in Mississippi during the 1960s by the National Association for the Advancement of Colored People (NAACP) that refused to sell to blacks. The court "struck down [the NAACP's] legal liability" for that particular kind of speech, ruling that the NAACP's "peaceful picketing in the service of a boycott [is] constitutionally protected" by the First Amendment. The court decided that "speech is protected, even if the speech urges refusal to deal," which in and of itself is not protected by the First Amendment.
Generally, advocacy of boycotts is constitutional, but the Eighth Circuit court explained that Claiborne dealt with protecting "expressive activities accompanying a boycott rather than the purchasing decisions at the heart of a boycott."
Bans on discrimination when conducting business include a phone company that cannot refuse to deal based on someone's politics, religion, or nationality, or a taxicab driver who must take all passengers unless the driver is under threat or there is a refusal to pay. Other anti-discrimination laws include bans on discrimination based on race, marital status, personal appearance, matriculation, political affiliation, source of income, or place of residence or business.
The above categories included in laws against discrimination are constitutional because they are not considered speech for the sake of the First Amendment, but refusal to deal involves conduct that is not protected by the First Amendment.
The Supreme Court ruled that there are some "narrow contexts" of refusals to deal that are constitutionally protected. Examples are churches, synagogues, and mosques which have a First Amendment right to discriminate in "those situations that involve religious practice or involve politics," such as whom they choose to hire as employees. Much like the web designer's right under protected speech to not create, a filmmaker is also protected in only hiring actors from a particular group or race.
Volokh filed an amicus curiae brief in a case supporting the First Amendment right to discriminate. The brief asserted a beauty pageant's right to limit contestants based on varied categories, including gender identity. It does not mean there is a First Amendment right to refuse a deal or boycott transgender people, but that there is a right to select participants in a pageant. Similarly, a nonprofit organization's refusal to hire spokespeople whose religion or sexual orientation would undermine the organization's message is also "probably" protected constitutionally.
A practical objection to the anti-BDS law is that it could not be enacted because it would be struck down in court, but that argument was thrown out by an appellate court, based on procedural grounds. In a ten-to-one vote, an appellate court determined that anti-BDS laws are constitutionally permissible, because the decision to exempt anti-BDS laws is at the discretion of the legislature.
Practically, everyone should have the right to discriminate in deciding whom to do business with, or to boycott, unless there is racial discrimination or decisions that would create social problems. If an individual chose to boycott, the government would not interfere with private discretion on the grounds that there is no constitutional right to refuse to deal. However, discrimination by companies or corporations with ten or fifteen employees is prohibited. That prohibition does not extend to those under "sole proprietorships," but if the individual is an independent contractor with the state, anti-BDS laws that apply to contracts with major corporations would also apply to the individual, thus prohibiting any boycott action.
The "Divestment and Sanctions" portion of the BDS movement refers to boycotting in investment practices, whereas boycotting is a refusal to purchase goods and divesting is a refusal to invest. From a constitutional perspective, there is little distinction.
"There's no First Amendment right to refuse to deal because refusal to deal is not speech."
BDS should be fought, but defending or opposing it on moral grounds is not a question for the courts, but rather a matter of debate in the political realm. Nonetheless, despite the controversy, anti-BDS laws, if properly crafted, are constitutionally permissible.
Marilyn Stern is communications coordinator at the Middle East Forum.