Free Speech Includes the Right to Boycott Israel

What you do with your money is your business  -- unless you use it to fund violence

Writing for a unanimous Supreme Court, Justice Sonia Sotomayor affirmed an essential principle: “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” In National Rifle Association v. Vullo (2024), a New York state regulator had made extortion-like threats against banks and insurance companies to discourage them from doing business with the NRA. The court held “viewpoint discrimination is uniquely harmful to a free and democratic society.”

Yet laws in numerous states penalize viewpoints on another controversial issue. To do business with the state of Arkansas, you must certify that you don’t “engage in boycotts of Israel.” A federal appeals court deemed the law constitutional because it “only prohibits economic decisions,” and since those are “invisible to observers unless explained,” they not only are unprotected by the First Amendment but don’t even constitute speech. The high court declined to hear an appeal, even though it has previously said boycotts are “deeply embedded” in our political process and entail core constitutional liberties.

Can it really be constitutional for governments to penalize the silent choices people may make based on their views of the Middle East conflict? Doesn’t that amount to a thoughtcrime?

In 2017 Texas required any company contracting with the state to affirm that it “will not boycott Israel during the term of the contract.” Five plaintiffs challenged the law. One argued that the declaration was contrary to his “personal and political beliefs.” He had previously boycotted certain Israeli-made products. Could he simply decline to buy those products now? How could he prove that his future nonpurchase of Israeli products was based on pure “business purposes” and not a continued boycott? A federal district court enjoined enforcement of the law, ruling that “political boycotts are protected speech” and rest on “the highest rung” of First Amendment values.

Attempts to curtail anti-Israel boycotts aren’t new. In the 1970s, Congress sought to prevent Arab League countries from strong-arming U.S. companies into complying with their boycott of Israel. Federal regulations prohibited making agreements with league members or responding to their demands for information. Several companies sued, claiming among other things that the rule infringed on the freedom of speech. An appeals court rejected their arguments, ruling that commercial speech aimed solely at preserving Arab trade relationships didn’t warrant constitutional protection.

That narrow ruling applied to a limited circumstance, in which the federal government was asserting a foreign-policy objective. Today’s state laws serve no foreign-policy purpose and merely punish people for expressing disfavored views. “Texas stands with Israel. Period,” Gov. Greg Abbott tweeted after the Council on American-Islamic Relations announced a legal challenge to the law in 2018.

I stand with Israel too and find the views of the boycotters repugnant. But we should all fear the implications of a state using its power to penalize them. Governments are fickle, and one will sooner or later target a viewpoint, organization or country that you deem sacrosanct. Perhaps a progressive legislature will mandate that contractors boycott what it deems “apartheid” or “genocidal” countries. What then?

Americans have long engaged in boycotts, for innumerable reasons. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that a boycott of white merchants by blacks in Mississippi in the 1960s “clearly involved constitutionally protected activity,” including speech. More recently, consumers and investors have spoken through boycotts or divestment of companies as wide-ranging as Chick-fil-A, Target and Ben & Jerry’s/Unilever (the last in retaliation for its own anti-Israel boycott).

Under the Constitution, people are free to determine which products or stocks they buy, or don’t, without suffering viewpoint discrimination. The Supreme Court may eventually reaffirm that principle by striking down an antiboycott law. In the meantime, states should exercise restraint, even if their intentions are noble

https://www.wsj.com/articles/free-speech-includes-the-right-to-boycott-israel-b879bfb6

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