Cross-posted from Balkanization

Last week, both Andrew Koppleman on Balkanization and Eugene Kontorovich in the Wall Street Journal published pieces arguing that laws aimed at silencing political boycotts of Israel are the same, for First Amendment purposes, as public accommodations laws.  More sharply, both suggest that the ACLU is hypocritical (and, in Kontorovich’s view, motivated by identity politics).  They fault the ACLU for defending antidiscrimination laws, such as the one at stake in Masterpiece Cakeshop, but challenging laws that prohibit state contractors from boycotting Israel.

Although catchy in concept (“How is a same-sex wedding like an Israeli West Bank settlement?”), these articles fundamentally misunderstand both the laws at issue and applicable First Amendment principles.  Koppleman and Kontorovich’s arguments can be boiled down to the oversimplified notion that both anti-BDS and public accommodations laws protect against discrimination, and so the First Amendment should treat them the same.  But the laws are nothing alike. 

Ordinary public accommodations laws regulate routine economic behavior (the buying and selling of goods and services), which does not generally trigger First Amendment coverage.  Anti-BDS statutes, by contrast, specifically aim to silence a key form of expression—political boycotts—because of its message.  Their aim is to quell dissent.

Ordinary public accommodations laws protect broad categories of people against discrimination (for instance, on the basis of race, religion, or sex).  These laws don’t care why someone refuses service—as part of a political movement, out of animus, due to fear of losing customers, or for no reason at all.  Public accommodations laws aim not at a particular political viewpoint—refusals to sell to white customers, for example, are equally prohibited as refusals to sell to black ones—but instead they aim to ensure equal opportunity to participate in what the Supreme Court has called the “transactions and endeavors that constitute ordinary civic life in a free society.” Romer v. Evans, 517 U.S. 620, 631 (1996).  The central idea reflected in over a century of public accommodation laws is that all people, regardless of status, should be able to receive equal service in American commercial life.  And these laws apply equally to all businesses, whether they are engaged in conduct that is expressive or not. 

By contrast, anti-BDS laws, such as the one at issue in the ACLU’s lawsuit, Jordahl v. Arizona, are not about discrimination.  Arizona’s law is about silencing a particular form of dissent because of its viewpoint. During the legislative process, multiple legislators, including the Arizona act’s primary sponsor, expressed their opposition to the BDS campaign and their intent to undermine the BDS movement.  This aim is reflected in the text of the law.  It does not, like public accommodations laws, ban refusals to serve broad classes of people.  Instead, it targets specifically—and only—activities “intended to limit commercial relations with Israel” (not Russia, England, Middle Eastern countries, or all foreign countries).  Moreover, it specifically targets political and associational boycotts, requiring government contractors to desist from boycotts taken “[i]n compliance with or adherence to calls for a boycott of Israel.”  These features make clear that the legislative objective was to suppress free expression.  Arizona’s law is transparently aimed at quashing the political viewpoint of the Boycott, Divestment, Sanctions movement (as the name “anti-BDS law” suggests).

That makes Jordahl an easy First Amendment case.  It’s well recognized that the First Amendment protects political boycotts, like the BDS movement.  In N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Supreme Court recognized the expressive character of political boycotts, and held unconstitutional a damages award against the NAACP for its role in organizing a boycott of white merchants in Claiborne County, Mississippi.  And such laws cannot survive even the less stringent standard of review articulated in United States v. O’Brien, 391 U.S. 367 (1968), because the governmental interest is not “unrelated to the suppression of free expression.” Id. at 377.  Suppressing free expression is precisely the government’s interest.

Arizona’s anti-BDS law and ordinary public accommodations laws are thus supported by very different sorts of governmental interests.  Public accommodations laws are not content or viewpoint based, as they prohibit discrimination without regard to whether the discriminating conduct is designed to express a particular message.  If Arizona had instead banned refusals to do business, say, “with any country or with persons or entities doing business in any country” or simply “on the basis of nationality or national origin” it might be another story.  But that law would never be passed . . . again evincing that Arizona’s law is a message-based gerrymander.  As the ACLU responded to Kontorovich in a letter to the editor, “States cannot outlaw boycotts of companies that support the Israeli government any more than they could outlaw boycotts of companies that supported apartheid South Africa.”

The difference between laws aiming to silence political boycotts of Israel and public accommodations laws is that one is drafted, passed, and aimed at silencing political expression, and the other is not.

*Disclosure: I previously worked at the ACLU on its Supreme Court litigation, including Masterpiece Cakeshop, and joined the Knight Institute’s First Amendment scholars’ amicus in support of the plaintiffs in Jordahl.