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User:ImTheIP/Legal analysis of anti-BDS laws

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As of 2020, the question of whether American anti-BDS laws are constitutional has not yet been settled in courts. Though many analysts believe that sooner or later there will be a legal showdown due to the controversial nature of the laws. The debate about the laws constitutionality focuses on two central issues:

  • Whether boycotts of Israel, and boycotts in general, can be considered a form of discrimination on the same level as discrimination based on gender, race, or similar attributes.
  • Whether political boycotts are protected speech. If so, laws designed to stop them could violate the First Amendment-protected freedom of speech.

The answer to the first question has implications for the answer to the latter; if the boycotts of Israel are discriminatory, the government could be free to enact laws against them.

In the following sections, those who claim that anti-BDS laws are constitutional are referred to as "proponents" and those that claim that they aren't are referred to as "critics".

Discrimination argument

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Proponents argue that boycotts of Israel is a form of discrimination because they target a particular group (Israelis) with the intent of inflicting economic harm on it.[1] Since there is no legal test for deciding whether a consumer boycott is discriminatory, the discrimination argument is based on laws regulating discrimination in other areas, such as employment, disability and housing. In particular, two doctrines in labor law has been referred to; disparate treatment or "discriminatory intent" and disparate impact. These laws weren't drafted to regulate political boycotts which limits their applicability but they have nevertheless been used to analyze whether boycotts of Israel are discriminatory.[2]

Disparate treatment

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Disparate treatment refers to decisionmaking based on a person's membership in a protected class. Proponents argue that BDS leaders call for Israel to cease exist as a "Jewish state" is anti-Semitic. Critics contend that the allegation is conflating anti-Zionism with anti-Semitism. Opposing Israel as a Jewish state is anti-Zionist but not anti-Semitic, they argue.[3] Critics also point out that the organization that coordinates BDS, the Palestinian BDS National Committee (BNC), officially opposes anti-Semitism and encourages supporters to select boycott targets based on their complicity in Israel's human rights violations and likelihood of success, rather than on their national origin or religious identity.[4]

Proponents notes that BDS singles out Israel for boycott while ignoring human rights abuses in other parts of the world. They argue that this focus is driven by animosity towards Jews or Israelis and that it is circumstantial evidence of discriminatory intent. They refer to the Working Definition of Antisemitism which gives "Applying double standards by requiring of it [Israel] a behavior not expected or demanded of any other democratic nation" as an example of anti-Semitism. The claim, which relies on the but-for test, a legal doctrine for establishing causality in discrimination cases, is that BDS wouldn't have boycotted Israel if it wasn't for its Jewish or Israeli identity. Critics counter that the but-for claim is not supported by evidence. They argue that since the majority of companies targeted for boycotts by the BNC are not Israeli companies, but foreign companies targeted for their complicity in the Israeli human rights violations, anti-Jewish or anti-Israeli animosity couldn't be BDS' motivation.[4]

Critics reason that if political boycotts of countries were illegal discrimination, many current and historical boycotts would also be illegal discrimination. The US sanctions against Iran would be anti-Iranian discrimination and if singling out an entity for boycott is discriminatory, most political movements using boycotts would be discriminatory. The Anti-Apartheid Movement would have had to address the suffering of people in other African countries too, to escape the charge of singling out South Africa. Critics claim that is unreasonable.[4]

Disparate impact

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The disparate impact argument complements the disparate treatment argument by stating that the boycott harms Jewish or Israeli entities, even if that is not its intent. That is, the boycott is "fair in form, but discriminatory in operation."[5] Critics argue that the disparate impact doctrine was developed with employment discrimination in mind and is not applicable to BDS and even if it was, the argument would fail. The plaintiff would have to show that the behavior has an adverse impact on Israeli or Jewish businesses. But the majority of companies targeted by BDS are not Israeli, making it difficult to argue that the boycott harms such entities.[4]

Even if Jewish or Israeli business were disproportionately impacted by BDS' boycott, critics argue that BDS could defend its boycott as a "business necessity" because its goal, ending Israel's human rights violations, is legitimate. An objection could be that BDS should use other methods that does not affect third parties. But given the failure of the many political initiatives in ending Israel's human rights violations, BDS could argue that a boycott of Israel is one of the few remaining options.[4]

Free speech argument

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Critics claim that anti-BDS laws are unconstitutional because participation in political boycotts is protected speech and the government cannot require citizens to relinquish First Amendment rights in exchange for government contracts. To show this, critics refer to NAACP v. Claiborne Hardware Co. which was about a NAACP-initiated a boycott against white merchants in Claiborne. The goal of the boycott was to pressure city officials to meet demands about racial integration. The Supreme Court in its decision found that boycotts to bring about political change occupies "the highest rung of the hierarchy of First Amendment values."[6]

Proponents contend that boycotting is not per se expressive conduct equivalent to speech and therefore not protected speech. They view calling for a boycott as distinct from participating in one. The former would be protected speech, while the latter, which anti-BDS laws address, would not. Someone calling for a boycott of Israel would not be affected by anti-BDS laws as long as they themselves didn't boycott Israel.[7] To them, Claiborne Hardware is irrelevant because it affirmed the right to call for a boycott but not to participate in one.[8] This view was taken by the Arkansas district court that ruled on Arkansas Times LP v. Mark Waldrip. It argued that Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR) was the controlling case, in which the Supreme Court ruled that the federal government could withhold funds from universities for refusing to give military recruiters access to school resources. Universities denying access to military recruiters is analogous to boycotting Israel, proponents argue. Since the Supreme Court ruled that denying access to military recruiters was not expressive conduct neither could boycotts of Israel be expressive conduct.[9] Critics argue that the analogy doesn't hold because FAIR wasn't about boycotting and participation in a political boycott is "expressing something", thus expressive conduct.[7]

Discarding Claiborne Hardware, proponents analogies anti-BDS laws with anti-discrimination laws which forbids government contractors from discriminating based on gender and similar attributes. Critics argue that the analogy is inappropriate because, for example, an employer refusing to hire gays is neither a political act nor expressive conduct. Even if a boycott has a discriminatory component, which the boycott ruled on in Claiborne Hardware had, it is still protected speech, critics assert.[10]

Another objection to Claiborne Hardware is that the case was about the lawfulness of boycotts, but anti-BDS laws merely withdraws a privilege from boycotters; that of being eligible for government contracts. This argument runs afoul of the "unconstitutional conditions" doctrine, critics argue. The doctrine holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech." This doctrine was promulgated in two seminal Supreme Court cases; Pickering v. Board of Education and Elrod v. Burns. However, these cases involved existing business relations between private entities and the government. Whether the doctrine of "unconstitutional conditions" applies to situations where no existing business relationship exists has not been addressed by the Supreme Court.[11]

Critics also refer to USAID v. Alliance for Open Society (2013) where the Supreme Court ruled that the government cannot require organizations to profess to a specific viewpoint as a condition for government funding. But anti-BDS laws coerces contractors bidding to profess to a specific viewpoint, namely of not boycotting Israel, which would be an unlawful "constitutional condition."[12]

Other arguments

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Proponents argue that the Tax Reform Act of 1976 and the Export Administration Act of 1979 which penalizes individuals and companies participating in "international boycotts" establishes a precedent. Critics offer two responses; first, Claiborne Hardware wasn't settled in 1979 so it wasn't yet clear that political boycotts were protected speech,[13] second, these acts referred to boycotts organized by foreign nations but BDS is a grassroots initiative organized by civil society groups.[14][15]

Another argument is based on Longshoremen v. Allied Int'l, Inc., where the Supreme Court held that a trade union that refused to unload cargo from the Soviet Union in protest against the country's invasion of Afghanistan had engaged in an illegal secondary boycott. Proponents claim that this case sets a precedent since it singled out a specific country and affected parties not directly involved in the dispute, just like boycotts of Israel do.[16] Critics view Longshoremen as irrelevant because the case was about labor law and such boycotts have consistently been analyzed differently from boycotts by civil rights groups.[17]

Cases

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The following cases are often cited in analyses of the constitutionality of anti-BDS laws:

Sources

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  1. ^ "Wielding Antidiscrimination Law to Suppress the Movement for Palestinian Rights". Harvard Law Review. February 10, 2020. Retrieved August 28, 2020. As nine states argued in an amicus brief: it is "intuitively obvious . . . [that] targeting a particular group (and those associating with them) for the intentional infliction of economic harm is discrimination, by definition," and BDS does just that.
  2. ^ "Wielding Antidiscrimination Law to Suppress the Movement for Palestinian Rights". Harvard Law Review. February 10, 2020. Retrieved August 28, 2020. Because there is no specific test for whether a consumer boycott constitutes discrimination, courts can instead look to two types of discrimination widely recognized in existing law: discriminatory intent and disparate impact discrimination.
  3. ^ "Wielding Antidiscrimination Law to Suppress the Movement for Palestinian Rights". Harvard Law Review. February 10, 2020. Retrieved August 28, 2020. Opponents counter that BDS leaders' statements advocating the end of Israel's existence as a Jewish state are direct evidence of anti-Semitism.... Such statements are anti-Zionist, and equating anti-Zionism ... with anti-Semitism ... requires a logical leap that defeats finding direct evidence of religious discrimination.
  4. ^ a b c d e "Wielding Antidiscrimination Law to Suppress the Movement for Palestinian Rights". Harvard Law Review. February 10, 2020. Retrieved August 28, 2020.
  5. ^ "Wielding Antidiscrimination Law to Suppress the Movement for Palestinian Rights". Harvard Law Review. February 10, 2020. Retrieved August 28, 2020. The claim that BDS commits disparate impact discrimination says: in targeting entities complicit in Israeli rights violations, BDS may not intend to specifically hurt Israeli or Jewish entities, but in effect it disproportionately inflicts economic harm on them. Disparate impact law prohibits conduct that is "fair in form, but discriminatory in operation."
  6. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. And because political boycotts are directed at issues of public concern, they are protected activities that "rest[] on the highest rung of the hierarchy of First Amendment values."
  7. ^ a b Mansur, Sarah (May 1, 2019). "Free speech rights and the rise of anti-BDS legislation". Chicago Daily Law Bulletin. Retrieved August 27, 2020. Those defending the constitutionality of the laws, like Kontorovich, maintain the trial court misinterpreted Claiborne to convey First Amendment protections to all activities associated with boycotts. "The actual issue at hand [in Claiborne] involves actual boycott organizing activities, basically calling on people to boycott and promoting a boycott, that is speech," he said. "The state can still get contracts under the state law if they say 'We hate Israel and we think Israel should be boycotted.' … They are entirely entitled to contract with the state because that's speech. … Boycotting Israel by itself does not tell you anything about the motives of the boycott." Cite error: The named reference "chicago2019-3" was defined multiple times with different content (see the help page).
  8. ^ Nathaniel Sobel. "Breaking Down the Combating BDS Act of 2019 and First Amendment Challenges to State Anti-BDS Laws". In the Arkansas case, Arkansas Times v. Waldrip, the district court ruled that boycotts against Israel, as defined by the statute, are not protected by the First Amendment. Relying on FAIR, the court found that boycotts are not protected "inherently expressive conduct" because "a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media." The court similarly concluded that Claiborne was not on point as it "did not 'address purchasing decisions or other non-expressive conduct'" and instead reached only "meetings, speeches, and non-violent picketing."
  9. ^ Mansur, Sarah (May 1, 2019). "Free speech rights and the rise of anti-BDS legislation". Chicago Daily Law Bulletin. Retrieved August 27, 2020. "I think the court has clearly said in Rumsfeld v. FAIR that the decision of who you do business with or not, even when you have a clear ideological motive, does not become expressive," said Eugene Kontorovich, a professor at George Mason University Antonin Scalia Law School and a director at the Kohelet Policy Forum in Jerusalem.
  10. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. Kontorovich has advanced this conduct-based argument, analogizing the anti-BDS statute to President Obama's executive order forbidding federal contractors from discriminating against employees on the basis of sexual orientation.... But this definition would cover the Claiborne Hardware boycott, which was directed at white merchants. Participation in a political boycott, even if it has a racial dimension, cannot be equated with a simple act of discrimination.
  11. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. ... under the doctrine of "unconstitutional conditions," which holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech," this distinction between direct and indirect burdens on protected speech makes no constitutional difference. In fact, the Supreme Court has applied the doctrine to directly hold that the state cannot terminate contracts in retaliation for a contractor's exercise of First Amendment rights.
  12. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. As noted above, in the case of the anti-BDS statute, it is difficult to argue that a company's decision to boycott a particular nation is related to its ability to perform a contract for which it bids. Instead, the state is using its economic leverage to discourage protected boycott activity. With the unconstitutional conditions doctrine "undergoing something of a renaissance in the Roberts Court," the Court could well use AID's formulation of the doctrine to invalidate the anti-BDS statute even if it stopped short of extending First Amendment protection to all new bidders.
  13. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. Claiborne Hardware had not yet been decided in 1979, so it was not yet clear that participation in a political boycott was protected First Amendment activity. Today, the federal antiboycott statutes may be unconstitutional.
  14. ^ "S.C. Code Ann. 11-35-5300 (2015)". Harvard Law Review. May 10, 2016. Retrieved August 27, 2020. A key feature of both federal statutes is that they apply only to boycotts organized by foreign nations against allies of the United States.
  15. ^ "Boycott and Divestment, Frequently Asked Legal Questions" (PDF). That act of Congress in 1979was a rider to legislation regulating US exportsand it was intended to counter participation in the Arab League's boycott of Israel. Specifically, the anti-boycott law prohibited participation in a boycott in cooperation with a foreign country. In no way did that legislation apply to boycotts undertaken as a matter of social, political or moral conscience; nor could it, under core First Amendment principles that protect boycotts undertaken to protest foreign or domestic governmental policies or actions.
  16. ^ Mansur, Sarah (May 1, 2019). "Free speech rights and the rise of anti-BDS legislation". Chicago Daily Law Bulletin. Retrieved August 27, 2020. Attorney Marc Greendorfer founded the Zachor Legal Institute, a think tank focused on legal challenges to the BDS movement. He said the Longshoremen case shows that the government can limit boycotts that serve as political protest of foreign nations' conduct. "It happens to be the case that International Longshoremen's involved unions, but it also involved directly analogous fact patterns," Greendorfer said.
  17. ^ "Boycotting a Boycott: A First Amendment Analysis of Nationwide Anti-Boycott Legislation" (PDF). Rutgers Law Review. 70 (5). Rutgers University: 1304. May 15, 2020. However, the Court's analysis made it clear that International Longshoremen was a case about labor law under the NLRA,... Labor union boycotts have consistently "been analyzed differently than boycotts of business or civil rights groups"
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