Tuesday, February 12, 2019

BDS and Masterpiece Cakeshop

Andrew Koppelman

How is a same-sex wedding like an Israeli West Bank settlement?  Discrimination based on either is not protected by the First Amendment.

Laws in 26 states provide that the state will not contract with companies that refuse to do business with those who invest in Israel.  In three states, the American Civil Liberties Union has sued to enjoin these laws, claiming that boycotts are protected by the First Amendment.  The argument has gotten some traction: two courts were persuaded, and free speech considerations persuaded many US Senators to vote against an anti-BDS bill.

However, less than two years ago, in Masterpiece Cakeshop v. Colorado, the ACLU argued that “the First Amendment’s free speech clause does not authorize a business to engage in discrimination prohibited by a regulation of conduct that incidentally affects expression.”  The ACLU was right then.  There’s no way to shoehorn discrimination – and firms that participate in BDS are undoubtedly discriminating – into the First Amendment.

Eugene Kontorovich has a piece (paywalled, alas) in today’s Wall Street Journal arguing that the ACLU’s position in its lawsuits is inconsistent with its prior arguments that free speech does not protect discrimination.  He doesn’t mention Masterpiece Cakeshop, but the inconsistency is particularly apparent there.

Advocacy of boycotts is undoubtedly protected speech.  So is advocacy of discrimination.  But a state remains free to refuse to do business with those who discriminate.  Kontorovich writes:  “the act of boycotting Israelis does not in itself express any particular political viewpoint. Companies may boycott Israel to curry favor with Arab states or out of mere anti-Semitism. They may hope to avoid harassment from the BDS movement or simply cave in to pressure from Palestinian groups.  Airbnb, the most prominent U.S. company to announce an Israel-related boycott, says its decision was entirely apolitical and that it opposes boycotts of Israel.”

The BDS movement is right that Israel’s West Bank settlements are illegal and, as a policy matter, insane (though many BDS proponents are curiously oblivious to the genocidal ambitions of much of the Palestinian leadership).  For that matter, I think that it ought to have been possible to make some accommodation for conservative Christians who don’t want to facilitate same-sex weddings.  But it’s a mistake to try to translate either of these policy judgments into free speech arguments.  Doing that threatens to gut all of antidiscrimination law, and is potentially anarchic in its implications, since disobeying the law often sends a message.  Conduct often has semantic significance.  But conduct that sometimes has semantic significance isn’t speech.  That was true in the case of the Colorado baker.  It’s true here as well.

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