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.”
[I agree — to a point. Boycotts are clearly both commercial and political actions, and thus come under First Amendment protection from *state* interference. That would tend to argue against laws that have been proposed that would bar BDS altogether. However, states impose a lot of conditions on contractors that they themselves employ, including issues that encroach on free association (hiring quotas), labor practices, and uses of goods and services. If a state government decides it doesn’t want to do business with a BDS-supporting entity, how is that any different than states requiring contractors to provide their DEI plans as a condition of contracting? It’s not as easy an issue as “we loved the Tea Party so therefore boycotts are a purely free-speech issue”. — Ed]
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