Monday, May 11, 2020

Can Court Distinguish Anti-BDS Laws from Public Accomodations Laws for First Amendment Purposes?

By David Bernstein - May 11, 2020 at 01:06PM

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors' right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights. Full disclosure: I believe the former argument is clearly correct under current First Amendment doctrine, and joined an amicus brief in a recent Fifth Circuit case, Amawi saying so.

Putting precedent aside, the biggest practical problem facing those challenging anti-BDS legislation is that boycotts are form of "refusal to deal." The line between "refusal to deal" and "discrimination" is very difficult to discern. For example, let's say Joe runs a restaurant. He refuses service to mixed-race couples, in violation of Texas's antidiscrimination law. Joe defends himself in court by saying, "I am acting within my First Amendment rights by boycotting, i.e., refusing to do business with, mixed-race couples." On the surface, Joe has an even stronger First Amendment case than those challenging the BDS laws, because he is not doing business with the government, so the government would seem to have less of an interest in how he runs his business.

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff's side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

By contrast, the motivation for public accommodations law is to increase access to public accommodations for disfavored minority groups and individuals, regardless of the underlying motivation for the exclusion. Put another way, the underlying motivation is the idea that "public accommodations" should be open to the entire public. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans (who are more likely to have business and other ties to Israel), such laws are still primarily motivated by hostility to the boycotters' cause and are therefore viewpoint discrimination in a way public accommodations laws, which after all have roots in ancient English law requiring inns and taverns to be open to all, do not.

I don't buy that reasoning, as I do think that in the modern U.S., a major underlying rationale for public accommodations laws is indeed the hostility to the ideology of those who might exclude, such as the baker who doesn't want to bake cakes for same-sex weddings.

But let's assume a judge was persuaded, making anti-BDS laws facially unconstitutional, but public accommodations laws facially okay. What happens when business owner subjected to public accommodations laws make as-applied First Amendment arguments in their defense? Imagine a private school announcing it is boycotting black students who want to integrate the school because they are pro-integration, and defending themselves against an antidiscrimination lawsuit on the grounds that the local public accommodations law is unconstitutional as applied to the school, because it's engaging in a politically motivated boycott. Given that the Knight brief asserts that boycotts are constitutionally protected activity, why would the public accommodations law not be unconstitutional as applied?

I asked one of the professors who signed the Knight Brief privately why he thinks that the arguments of the brief wouldn't ultimately be used to successfully support such as-applied challenges. He provided a one-word response, "O'Brien." United States v. O'Brien (1968) holds that when the government is prosecuting symbolic speech, or combined speech/action, the underlying law must (a) further an important or substantial government interest (b) that is content-neutral; and (c) prohibit no more speech than is essential to further that interest.

The biggest problem with that argument is that the Supreme Court has declined two major opportunities to apply O'Brien to First Amendment challenges to public accommodations law, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy Scouts of America v. Dale. In each case, the Court was urged to apply the O'Brien test, and, in each case, not a single Justice applied O'Brien.

My conclusion, therefore, is any future free speech challenges to public accommodations law will not involve O'Brien, but will instead stricter traditional First Amendment standards, requiring the government to show a compelling interest and that its law is narrowly-tailored. If challengers to anti-BDS laws persuade courts that refusals to deal/boycotts are protected speech, then public accommodations and other civil rights laws will be vulnerable. Perhaps longstanding laws prohibiting discrimination based on race and sex would survive the compelling interest test. But Hurley and Dale suggest that broader, more controversial state laws will not necessarily survive judicial scrutiny. My guess is that appellate courts, being aware of this dynamic, are unlikely to open the Pandora's box of ruling that refusing to engage in economic relations is "speech" for First Amendment purposes.

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