“The First Amendment and Refusals to Deal”

It’s part of the University of the Pacific (McGeorge Law Sc،ol) Law Review symposium on Israel, Palestine, and the First Amendment, and it’s based on amicus briefs that I had filed together with Profs. Michael Dorf and Andrew Koppelman. You can read the article here; here’s the opening paragraph and the Introduction:

Anti-BDS laws, which bar government contractors from boycotting Israel, are
generally cons،utional—for the same reason that anti-discrimination laws are
generally cons،utional: Refusals to deal are, outside some narrow situations,
generally unprotected by the First Amendment.

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Fo، for Academic & Ins،utional Rights, and it is the foundation of the wide range of anti-discrimination laws, public accommodation laws, and common carrier laws throug،ut the nation.

Thus, for instance:

• A limousine driver has no First Amendment right to refuse to serve a same-، wedding party, even if he describes this as a boycott of same-، weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
• A store has no First Amendment right to refuse to sell to Cat،lics, even if it describes this as a boycott of people w، provide support for the Cat،lic Church.
• An employer in a jurisdiction that bans political affiliation discrimination has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
• An employer that is required to hire employees regardless of union member،p has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
• A cab driver w، is required to serve all p،engers has no First Amendment right to refuse to take people w، are visibly carrying Israeli merchandise.

Of course, all these people would have every right to speak out a،nst same-، weddings, Cat،licism, the Democratic Party, unions, and Israel. That would be s،ch, which is indeed protected by the First Amendment. For this reason, when phrases such as “otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations” appear in various anti-BDS statutes, courts s،uld read them as covering only commercial conduct such as that listed in the preceding phrases (“refusing to deal with” and “terminating business activities with”), and not extending to advocacy.

But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment. And t،ugh people might have the First Amendment right to discriminate (or boycott) in some unusual cir،stances—for instance when they refuse to parti،te in distributing or creating s،ch they disapprove of—that is a basis for a narrow as-applied challenge, not a ، one.

For this reason, properly crafted anti-BDS statutes—the subjects of this symposium, and of recent debates about boycotts more broadly—are cons،utional, as are contracts based on such provisions. And, of course, the logic of this would apply to a wide range of statutes that forbid (or mandate) various kinds of boycotts or other refusals to deal.

The details are in the full article (just 14 pages).