Boycott Bans Are an Assault on Free Speech

[Celerity]

A court ruling upholding an anti-BDS law in Arkansas sets a dangerous precedent.

https://www.theatlantic.com/ideas/archive/2023/03/supreme-court-arkansas-anti-israel-boycotts/673310/

https://archive.is/IlDqm



America began with boycotts. Angry about Britain’s tax raises, the historian T. H. Breen writes, American colonists saw their refusal to purchase British goods as a “reflexive response to taxation without representation,” and their collective action helped forge an early sense of American identity as a precursor to the Revolution itself. The Revolution-era boycotts were hardly the last American consumer protests. Abolitionists urged Americans to buy only goods produced by “free labor,” and the 20th-century civil-rights movement famously included the Montgomery bus boycott against Alabama’s segregated public-transportation system. Boycotts, as my colleague Conor Friedersdorf wrote in 2018, are “a bedrock of American civic life, inseparable from the Constitution’s guarantee of free speech and the wariness many feel whenever a law compels humans to violate their conscience.”

Read: The constitutional right to boycott

Boycotting as a tactic does not have a particular ideological valence. Conservatives called for a boycott of Dunkin’ Donuts over a paisley scarf they mistook for a kaffiyeh and of the shaving company Gillette for an advertisement criticizing “toxic masculinity.” In 2017, they tossed their Keurig machines out the window over that company’s decision to stop advertising on Sean Hannity’s Fox News show after he defended the Republican Senate candidate Roy Moore, who lost a close election in Alabama following revelations that he had hit on teenagers while in his 30s (conservative pundits don’t count that as “grooming,” because he is heterosexual). These probably won’t be remembered as fondly as resisting the British or undermining slavery, but the point is that there’s a boycott for people of any ideological persuasion.

Despite their historical pedigree, the Eighth Circuit Court of Appeals ruled in 2021 that boycotts are “purely commercial, non-expressive conduct.” A majority of the conservative-dominated panel—the only Democratic-appointed judge on the entire circuit dissented—concluded that an Arkansas law compelling state contractors to sign a form promising that they would not participate in the Boycott, Divestment, and Sanctions movement targeting Israel over its decades-long occupation of Palestinian territory did not violate the First Amendment. Their reasoning was that this state ban on a particular form of protest merely prohibits “purely commercial, non-expressive conduct,” blocking the signers from “economic decisions that discriminate against Israel.”

The dissenting judge argued that the law was unconstitutional, noting that “by the express terms of the Act, Arkansas seeks not only to avoid contracting with companies that refuse to do business with Israel. It also seeks to avoid contracting with anyone who supports or promotes such activity.” “I think what’s really offensive about the anti-BDS laws in particular is the way that they single out not even boycotts generally, but on this one specific issue for special penalties—I think that really gives the game away that the government is trying to suppress specific viewpoints here,” Brian Hauss, an attorney for the ACLU, which challenged the Arkansas law and several others like it, told me. “And that’s really kind of the cardinal sin when it comes to the First Amendment.”

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[Samrob]

1. I agree. Especially when we are being so selective in anti-boycotts. nt

[Hermit-The-Prog]

2. Of course it's unconstitutional, but much of our judiciary has been bought.