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.