Balkinization: No, I Don’t Support Anti-BDS Laws

No, I Don’t Support Anti-BDS Laws

Andrew Koppelman

A recent note in the Harvard Law Review inadvertently misrepresented my political views. The Harvard editors have graciously corrected the error in the online version, and appended a statement noting the correction. However, it remains in the print version, for some time the erroneous version was available for download on the web, and of course there’s no telling how widely it has or will spread. Hence this clarification.

The Harvard piece, a student note, concerns anti-BDS laws. Those laws, on the books in 28 states, provide that the state will not contract with anyone who refuses to do business with those who invest in Israel. The Note argues that anti-BDS laws cannot be defended as antidiscrimination laws, because the BDS movement does not involve invidious discrimination or antisemitism. It cites, though it barely responds to, an Eighth Circuit amicus brief I coauthored with Michael Dorf and Eugene Volokh, arguing that commercial refusals to deal are not constitutionally protected speech. The citation follows this, in the originally posted, now deleted version: “supporters of anti-BDS laws argue that BDS is not protected because it is merely the nonexpressive conduct of withholding business and requires additional explanation in order to be expressive.”

It should hardly be necessary to say (but Dorf says here) that when a lawyer rejects an unsound constitutional attack on a statute, it does not follow that the lawyer supports the statute as a policy matter or would have voted for it were he a legislator. Yet that’s the assumption driving this sentence. (The corrected version changes “supporters of anti-BDS laws” to “supporters of anti-BDS laws’ constitutionality.”)

So I’m now obligated to clarify that I don’t support these laws. I begin by repeating what I wrote a year ago: “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).” I think the BDS movement is counterproductive and often tainted by antisemitism. The anti-BDS laws, however, don’t help; they are a way of beating up on people whose political views the legislatures don’t like. Small businesses and nonprofits embrace BDS, with no effect at all on anyone in Israel or the West Bank, and they are then barred from government contracts, with no effect at all on anyone in Israel or the West Bank. People on both sides of the controversy are curiously fascinated with symbolic gestures that have nothing to do with the actual, urgent problem of enabling Palestinians and Jews to live together in peace.

The only reason I joined the intervention into this dialogue of the deaf is that the free speech argument against anti-BDS laws has enormously destructive implications. As I wrote a year ago, it “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.” I’ve been engaging for some time with the attempted deployment of free speech against antidiscrimination laws in the context of wedding vendors who refuse to facilitate same-sex marriages. This particular bad argument is thus tediously familiar, and is no better in this context.

Posted 9:13 AM by Andrew Koppelman [link]