It’s Time to Reaffirm Our First Amendment Right to Boycott(aclu.org)
aclu.org
It’s Time to Reaffirm Our First Amendment Right to Boycott
https://www.aclu.org/news/free-speech/its-time-to-reaffirm-our-first-amendment-right-to-boycott
181 comments
I still cannot wrap my head around the idea of making a boycott illegal. If it's not accompanied by speech, what is the difference between someone who actively avoids a product or one who simply would not have purchased it in the first place? How can that possibly be enforced? If I sign that form and then happen to not buy any of the products I'm not supposed to boycott, have I violated the contract?
Here's the way it works, in practice.
Legislators who propose and pass this legislation use it to demonstrate their support for Israel, or coal mining, or gun rights, or whatever anti-boycotting cause they're advancing. They are the primary beneficiaries here, because it helps them get donations and get re-elected.
Entities who are forced to sign these pledges generally put as much thought into it as you or I put into agreeing to a TOS with a binding arbitration agreement. In other words, not very much thought at all.
Because ... As you've pointed out, the government cannot, in practice, prove that those entities are actually boycotting unless the entities come right out and say it. So if the entities actually want to boycott Israel, they can continue to do so without announcing it. The law doesn't actually stop anyone from boycotting Israel; at best, it merely stops them from publicizing what they're doing.
The reason this doesn't get much push-back from most people who are forced to sign the pledge is because they weren't actually planning to boycott anyway. But there's a small number, such as the publisher who's at the heart of this case, who had no plans to boycott Israel, but who isn't going to let those legislators bully them.
Legislators who propose and pass this legislation use it to demonstrate their support for Israel, or coal mining, or gun rights, or whatever anti-boycotting cause they're advancing. They are the primary beneficiaries here, because it helps them get donations and get re-elected.
Entities who are forced to sign these pledges generally put as much thought into it as you or I put into agreeing to a TOS with a binding arbitration agreement. In other words, not very much thought at all.
Because ... As you've pointed out, the government cannot, in practice, prove that those entities are actually boycotting unless the entities come right out and say it. So if the entities actually want to boycott Israel, they can continue to do so without announcing it. The law doesn't actually stop anyone from boycotting Israel; at best, it merely stops them from publicizing what they're doing.
The reason this doesn't get much push-back from most people who are forced to sign the pledge is because they weren't actually planning to boycott anyway. But there's a small number, such as the publisher who's at the heart of this case, who had no plans to boycott Israel, but who isn't going to let those legislators bully them.
> So if the entities actually want to boycott Israel, they can continue to do so without announcing it. The law doesn't actually stop anyone from boycotting Israel; at best, it merely stops them from publicizing what they're doing.
But that is exactly what boycotts are all about. An effective boycott isn't just you deciding to stop buying something, but it's about convincing lots of other people and organizations to also stop buying something.
And, perhaps most importantly, in any organization there is guaranteed to be a paper trail for any prohibitions against, say, purchasing from any companies in Israel. This kind of legislation absolutely would have a chilling effect on organizational purchases, which is where the vast amount of money sent to places likely to be boycotted comes from.
But that is exactly what boycotts are all about. An effective boycott isn't just you deciding to stop buying something, but it's about convincing lots of other people and organizations to also stop buying something.
And, perhaps most importantly, in any organization there is guaranteed to be a paper trail for any prohibitions against, say, purchasing from any companies in Israel. This kind of legislation absolutely would have a chilling effect on organizational purchases, which is where the vast amount of money sent to places likely to be boycotted comes from.
[deleted]
So it's only illegal if accompanied by speech, thereby making a specific speech illegal. Isn't that a first amendment violation?
It's only enforceable if accompanied by speech. If I commit a crime with no evidence, my confession is the only thing that can convict me. I don't think it would be fair to say I'd be forbidden from confessing.
I think there's a stronger case that your purchase choice is covered as free expression or that the government can't compel you to do business with a private entity.
I think there's a stronger case that your purchase choice is covered as free expression or that the government can't compel you to do business with a private entity.
It's not illegal, you just wouldn't get government contracts, or be accepted as a government employee. Essentially, you can't say "don't buy from Jews" and be a teacher or sponsor KKK-marches and do landscaping for the local government.
You can do both without doing business with the government though, so legality is not questioned.
You can do both without doing business with the government though, so legality is not questioned.
That's not how the first amendment works, as it does put limitations on the kinds of speech that governments are allowed to favor (or disfavor). Just saying it only affects employment or contracts does not act like a "get out of jail free" card for governments.
Of course, there is a ton of gray area here that the courts will have to rule on, but the whole point the ACLU is making is that they believe these anti-boycott laws are in violation of the first amendment.
Of course, there is a ton of gray area here that the courts will have to rule on, but the whole point the ACLU is making is that they believe these anti-boycott laws are in violation of the first amendment.
You're right, it's not how the first amendment is supposed to work. But it's definitely how it currently works.
[deleted]
"Free speech is just about government, private companies like Twitter can censor you"
"Actually free speech means you can lose government contracts or you job as a government employee too"
You know, at least I think China is a bit more honest about how they approach this question.
"Actually free speech means you can lose government contracts or you job as a government employee too"
You know, at least I think China is a bit more honest about how they approach this question.
I'm not a fan of private companies or governments limiting speech, but there's a difference between the government saying "you're not allowed to say that" and the government saying "you're not allowed to say that if you want to be associated with the government".
It could totally be a slippery slope towards the government amassing more power and then granting contracts only to those who parrot the party line, but I believe the solution to that is to reduce government size and power.
And also, I don't find your position so controversial that you'd need a throwaway account.
It could totally be a slippery slope towards the government amassing more power and then granting contracts only to those who parrot the party line, but I believe the solution to that is to reduce government size and power.
And also, I don't find your position so controversial that you'd need a throwaway account.
The original American colonists boycotted the tea from England. Under the appeals court ruling, things like boycotting twitter could be made illegal.
Admittedly I don’t know American history well.
Are you referring to the Boston tea party or was there a much longer running boycott? I ask because my weak understanding is that colonists waylaid ships in port and actively destroyed the cargo. That’s more than a boycott, I think?
Are you referring to the Boston tea party or was there a much longer running boycott? I ask because my weak understanding is that colonists waylaid ships in port and actively destroyed the cargo. That’s more than a boycott, I think?
Non-consumption and non-importation movements in response to taxes levied on various goods imported from England. Precursors to the future direct action taken at the Boston Tea Party.
https://www.masshist.org/revolution/non_importation.php
https://www.masshist.org/revolution/non_importation.php
Thanks for the link and lesson!
And I’m guessing that when the ACLU mentions the Boston Tea Party at the beginning of the article, they mean the bigger series of events and not as much the destruction of property in the harbour. I imagine they’re not advocating for the constitutional right to illegally destroy property as a form of boycott.
(Fully appreciating that context was very different in 1773, I’m not suggesting the Boston Tea Party was “wrong”.)
And I’m guessing that when the ACLU mentions the Boston Tea Party at the beginning of the article, they mean the bigger series of events and not as much the destruction of property in the harbour. I imagine they’re not advocating for the constitutional right to illegally destroy property as a form of boycott.
(Fully appreciating that context was very different in 1773, I’m not suggesting the Boston Tea Party was “wrong”.)
It was less about the taxes, and more about the fact that Britain banned the import of tea by any other country.
These days, we have plenty of monopolies that probably deserve similar treatment (or anti trust actions), so the schools don't teach that part of the story.
These days, we have plenty of monopolies that probably deserve similar treatment (or anti trust actions), so the schools don't teach that part of the story.
There was a stronger anti-tax argument for other things (stamp act, especially) but the tea issue was mostly a bunch of smugglers and smuggler-connected folks who were pissed off that the British had not just made any gray-area work they were doing explicitly illegal, but were also undercutting them such that they couldn't compete on price, even by breaking the law.
For ordinary tea drinkers the whole tea thing actually made tea cheaper. It's one of the weirder things to get attention as a reason-for-revolt, really. I suppose the "tea party" protest is just odd and interesting enough that we can't resist lumping that in with far more legitimate grievances.
For ordinary tea drinkers the whole tea thing actually made tea cheaper. It's one of the weirder things to get attention as a reason-for-revolt, really. I suppose the "tea party" protest is just odd and interesting enough that we can't resist lumping that in with far more legitimate grievances.
The American colonists weren’t trying to boycott English tea while still trying to get government contracts from England. The question is not whether the government can ban a boycott (obviously not) but whether it can use its position as a major buyer to influence such boycotts.
People boycotting Israel aren't trying to get government contracts with Israel either.
There is obviously gray area here, but I think it's extremely unlikely the courts will rule that these anti-boycott laws are OK because it only affects employment or contracts. More than likely, courts will see it as a free speech restriction, but will apply the strict scrutiny test to determine if these are an allowed compelling government interest.
1. https://en.m.wikipedia.org/wiki/Strict_scrutiny
2. https://en.m.wikipedia.org/wiki/Government_interest
There is obviously gray area here, but I think it's extremely unlikely the courts will rule that these anti-boycott laws are OK because it only affects employment or contracts. More than likely, courts will see it as a free speech restriction, but will apply the strict scrutiny test to determine if these are an allowed compelling government interest.
1. https://en.m.wikipedia.org/wiki/Strict_scrutiny
2. https://en.m.wikipedia.org/wiki/Government_interest
So? Those US companies aren't getting government contracts from Israel.
The original antiboycott laws were an unfortunate response to an otherwise intractable issue. Until recently, most countries in the Arab world had both a primary boycott on Israel and a secondary boycott on any company that does business with Israel. So there was a real and pressing concern that some companies might feel they have to boycott Israel, not because they themselves have an issue with the country but because they can't afford to sacrifice the rest of the Middle East market for it. Antiboycott laws were a solution, and a solution that seems to have worked pretty well - the Arab League never explicitly revoked their boycott, but it's virtually unenforced and nobody has to choose between doing business with Israel and doing business with the Arab world.
The new wave of antiboycott laws this article is referring to are much less justified, I think, but you'll note that they're on the same topic in response to still-ongoing efforts by the BDS movement to promote a secondary boycott. So it's not as unreasonable as it would first seem.
The new wave of antiboycott laws this article is referring to are much less justified, I think, but you'll note that they're on the same topic in response to still-ongoing efforts by the BDS movement to promote a secondary boycott. So it's not as unreasonable as it would first seem.
The article points out that the law is being enforced against individuals.
As an individual, I would definitely support BDS businesses if I could. I'd stop doing so after Israel ended it's eternal war / apartheid system.
The point of a boycott is to allow individuals to force companies to take actions, not to avoid hurting the amorphous feelings of corporations that don't have a problem with the status quo.
Note that a large percentage (and sometimes the majority) of Jewish Israelis disapprove of the onging human rights violations BDS is trying to end.
As an individual, I would definitely support BDS businesses if I could. I'd stop doing so after Israel ended it's eternal war / apartheid system.
The point of a boycott is to allow individuals to force companies to take actions, not to avoid hurting the amorphous feelings of corporations that don't have a problem with the status quo.
Note that a large percentage (and sometimes the majority) of Jewish Israelis disapprove of the onging human rights violations BDS is trying to end.
Here are some possible second-order effects if you can't say that you boycott X in writing.
- It means you can't advertise that you boycott X and get business from other people who also want to boycott X.
- It means you can't require a subcontractor to also boycott X when doing a job for you.
- It means you can't advertise that you boycott X and get business from other people who also want to boycott X.
- It means you can't require a subcontractor to also boycott X when doing a job for you.
It’s not at all hard to enforce boycott prohibitions against companies. Above a handful of people, a company that wants to boycott X will need to communicate that, most likely in writing, to their employees.
If it's not announced, if your intentions are not known, is it a boycott? I'd say no, because you're not boycotting Store A if you're shopping at Store B for some reason other than your hate of Store A for store-unrelated reasons (e.g. the political stance of the store owner, or the color of their skin).
Even simpler, making your intentions known should fall under "political speech" -- which currently enjoy the widest protections under the courts.
This is precisely how one would create a silent majority - muzzling any dissenting speech or attitude.
It's not illegal, but it does disqualify you from getting a federal government business contract. I think this is more of a gray area than advocates would like to make you believe.
Whatever you might feel about Israel, you can't deny the fact that they are a strategically valuable geopolitical ally, and it's not unreasonable for the federal government to avoid doing businesses with companies that are actively and publicly boycotting a strategic ally. What if it was Taiwan instead?
Whatever you might feel about Israel, you can't deny the fact that they are a strategically valuable geopolitical ally, and it's not unreasonable for the federal government to avoid doing businesses with companies that are actively and publicly boycotting a strategic ally. What if it was Taiwan instead?
> you can't deny the fact that they are a strategically valuable geopolitical ally.
So ergo, we must destroy the first amendment to shield other countries from valid criticisms? I'd think we'd want our allies to respect our right to free speech above all else.
Edited to add: I even think we would want to respect our right to free speech over the beliefs of our allies.
So ergo, we must destroy the first amendment to shield other countries from valid criticisms? I'd think we'd want our allies to respect our right to free speech above all else.
Edited to add: I even think we would want to respect our right to free speech over the beliefs of our allies.
Of course protecting our ally Israel in special ways is exactly what these laws are intended to do. People get all bent out of shape when someone criticizes the US, and the same happens with regards to Israel. Countries make mistakes, it's a good idea to have open discussion of those problems. Saying your can't criticize the us because it's unamerican or helps our enemies or some such is just nonsense, and it also applies to other countries in the world.
This was one of the problems of the George W. Bush on the run up to the Iraq war. If you criticized the president, you were accused of giving "aid and comfort" to the enemy --- which of course was nonsense.
What first amendment right is being destroyed? You have the right to boycott. The federal government also has the right to boycott you for choosing particular targets of your boycott.
No. The federal government does not have that right, that's the entire point of this lawsuit. And the entire point of the first amendment.
In a democracy, a government does not have the right to selectively boycott its citizens for their political views. Otherwise, what's next -- the party in power refusing to award contracts to businesses that support the opposition party? You can see how democracy would collapse pretty quickly.
In a democracy, a government does not have the right to selectively boycott its citizens for their political views. Otherwise, what's next -- the party in power refusing to award contracts to businesses that support the opposition party? You can see how democracy would collapse pretty quickly.
Actually the government very specifically does not have the right to retaliate against you based upon protected speech you make, the entire point of the first amendment.
Is it speech or is it inefficient sourcing practices? The fed doesn't want to buy from a company engaging in boycotts because it's paying a premium to exclude a certain segment of the market. If the cheapest manufacturer of a part is a boycotted country then a more expensive one must be sourced.
If a country really should be excluded from trade pass a sanction.
If a country really should be excluded from trade pass a sanction.
That's the point of the bidding process for government contracts. If your boycott makes your services more expensive, then you're less likely to receive the contract, but it would still be your choice.
And it doesn't apply at all to e.g. Teachers who are being forced to sign waivers like this
And it doesn't apply at all to e.g. Teachers who are being forced to sign waivers like this
> If your boycott makes your services more expensive, then you're less likely to receive the contract, but it would still be your choice.
The cheapest bid might be even cheaper absent the boycott. I, and plenty of other people, don't want to pay this premium because of a company's political agenda. Fulfill the contract with the most efficient supplies on the market, or don't both bidding at all.
The cheapest bid might be even cheaper absent the boycott. I, and plenty of other people, don't want to pay this premium because of a company's political agenda. Fulfill the contract with the most efficient supplies on the market, or don't both bidding at all.
The principle in question is favoritism based upon political speech.
If, say, you boycott the democratic party (e.g.), then the Biden government would have every right to cancel any contracts because of your political speech. The only way to prove that you're not actually boycotting would be to donate to the democratic party.
If, say, you boycott the democratic party (e.g.), then the Biden government would have every right to cancel any contracts because of your political speech. The only way to prove that you're not actually boycotting would be to donate to the democratic party.
Similarly, by the logic of the current anti-boycott laws, they could make you promise not to support those anti-Democrat nutjobs in the GOP.
I don't think this is a gray area. There's a bunch of Supreme Court decisions striking down the state's ability to use business contracts to compel speech --- compelled speech was a big problem in the middle of the last century, as it was used to prop up local political machines.
That's interesting, what cases should I read about to get the background on this?
No, it's definitely not a gray area -- it's utterly anti-democratic.
What if the government only awarded contracts to companies who promised not to donate money to Democrat PAC's (or Republican PAC's)?
What if the government only awarded contracts to companies who stayed silent on gay marriage, and didn't normalize it in their advertising?
These strike at the heart of the first amendment. Companies are allowed to engage in political speech/action, and boycotting Israel is precisely that. Some people think Israel is a valuable ally, others think it's a horribly unjust and undemocratic country for its treatment of Palestinians.
The government isn't allowed to favor or disfavor individuals or companies due to their political views. That's a bedrock principle of democracy. That's what the first amendment is about. There's zero gray area in this case.
What if the government only awarded contracts to companies who promised not to donate money to Democrat PAC's (or Republican PAC's)?
What if the government only awarded contracts to companies who stayed silent on gay marriage, and didn't normalize it in their advertising?
These strike at the heart of the first amendment. Companies are allowed to engage in political speech/action, and boycotting Israel is precisely that. Some people think Israel is a valuable ally, others think it's a horribly unjust and undemocratic country for its treatment of Palestinians.
The government isn't allowed to favor or disfavor individuals or companies due to their political views. That's a bedrock principle of democracy. That's what the first amendment is about. There's zero gray area in this case.
> What if the government only awarded contracts to companies who stayed silent on gay marriage, and didn't normalize it in their advertising?
But they already do that, don't they? I mean, not anti gay marriage, but pro diversity. For some reason the UCF bought email lists from some entity, and they believe me to be a small business owner in some US state who shares my first name. I occasionally get emails from them asking me to join their diversity-training in order to become eligible as a supplier.
That's pretty old news. The only new thing (and the reason the ACLU cares, I assume) is that it's affecting a view that is currently associated with the left (BDS/anti-semitism/anti-israeli campaigns).
But they already do that, don't they? I mean, not anti gay marriage, but pro diversity. For some reason the UCF bought email lists from some entity, and they believe me to be a small business owner in some US state who shares my first name. I occasionally get emails from them asking me to join their diversity-training in order to become eligible as a supplier.
That's pretty old news. The only new thing (and the reason the ACLU cares, I assume) is that it's affecting a view that is currently associated with the left (BDS/anti-semitism/anti-israeli campaigns).
You're correct in that the only area in the US where governments choose to award contracts in ways that are unrelated to performance is for diversity purposes.
But diversity isn't speech. E.g. if a business is black-owned or female-owned has nothing to do with their political speech/views.
And diversity is a unique case, related to protected classes, having to do with past explicit discrimination against these groups, and trying to remedy that to some small extent.
In any case, it has nothing whatsoever to do with political expression, and therefore nothing to do with the first amendment. And so no, it has nothing to do with left/right either.
But diversity isn't speech. E.g. if a business is black-owned or female-owned has nothing to do with their political speech/views.
And diversity is a unique case, related to protected classes, having to do with past explicit discrimination against these groups, and trying to remedy that to some small extent.
In any case, it has nothing whatsoever to do with political expression, and therefore nothing to do with the first amendment. And so no, it has nothing to do with left/right either.
I believe that "diversity is our strength and therefore must be expanded" is speech. If you require companies to fulfill some diversity quota, you're doing so because of that belief. The idea itself is part of the current left's canon, so it certainly is political.
It's just something that most here do agree with, so they're fine with it.
It's just something that most here do agree with, so they're fine with it.
No, you're mixing things up.
Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
It's not the speech of minority-owned businesses. Awarding contracts to take diversity into account is based on who the businesses are owned by, *not* what those businesses say/believe.
You can disagree with awarding contracts based on diversity all you want, just don't claim that doing so has anything to do with free speech or the first amendment, because that's incorrect.
Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
It's not the speech of minority-owned businesses. Awarding contracts to take diversity into account is based on who the businesses are owned by, *not* what those businesses say/believe.
You can disagree with awarding contracts based on diversity all you want, just don't claim that doing so has anything to do with free speech or the first amendment, because that's incorrect.
And as far as I understand the policies, you don't need to be minority-owned. You need to have some diversity quota filled and/or promise to get it filled. Like a pledge to do something.
> Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
The same applies to this case, where the democratically elected legislature says you don't get contracts if you say "don't buy from Jews" and passes laws to that effect.
> Yes that quote is political speech/belief. But it's the expression of the legislature on policy, that is democratically determined, whether you agree with it or not.
The same applies to this case, where the democratically elected legislature says you don't get contracts if you say "don't buy from Jews" and passes laws to that effect.
I'm sorry but you're continuing to spread pure misinformation, in case anybody else sees this.
Whether it's minority ownership or affirmative action in its workforce is irrelevant. Employment policy is policy around protected classes, it's not speech.
While your case of 'you don't get contracts if you say "don't buy from Jews"' makes contracts dependent upon speech. Which contradicts the first amendment.
The distinction is not complicated here. You might not like it, but the distinction exists.
Whether it's minority ownership or affirmative action in its workforce is irrelevant. Employment policy is policy around protected classes, it's not speech.
While your case of 'you don't get contracts if you say "don't buy from Jews"' makes contracts dependent upon speech. Which contradicts the first amendment.
The distinction is not complicated here. You might not like it, but the distinction exists.
What if it was Qatar instead, or Saudi Arabia? Are they not allies? Are ppl allowed to express dissatisfaction with their behaviour?
> Saudi Arabia?
If you're a politician you aren't allowed to say anything against them either.
If you're a politician you aren't allowed to say anything against them either.
Of course, but the government is also allowed to decide not to do business with those people.
This case is more analogous to the case of the cake shop who wouldn't make a wedding cake for a gay couple. It's less about free speech in general and more about discrimination in doing business.
This case is more analogous to the case of the cake shop who wouldn't make a wedding cake for a gay couple. It's less about free speech in general and more about discrimination in doing business.
The US and state governments are not private institutions. The money used to pay the contracts in question is collected from citizens who have to pay it. The government can't then turn around and gate that public money behind 1st amendment violating policy.
Right: and the voters have decided that they don't want their tax dollars to be squandered paying a premium because contractors have decided to boycott. If someone wants to boycott Taiwan and avoid any semiconductors from TSMC, then they're engaging in significant self-sabotage and it's wise for the government to avoid people engaging in this behavior.
There is no premium to be paid for boycotting Israel and that fabricated scenario has nothing to do with pro-Israel lobbyist driven first amendment violations.
Any time you reject a segment of the market, you're limiting the pool of available vendors. This obviously applies more to markets with significant presence in the boycotted country. Semiconductors for Taiwant, Israel makes plenty of sensor and software products.
The only thing segmenting the market are the anti-BDS laws. You can boycott Israel and still bid on a government contract and let market forces do the work.
This isn't an issue of market efficiency though, it's an issue of violating the first amendment.
This isn't an issue of market efficiency though, it's an issue of violating the first amendment.
Right except a specific country is excluded from that market. A company engaging in a boycott is saying "if the cheapest component comes from an Israeli firm, we're going to pay a prenup to source it somewhere from else." As a taxpayer, I don't want to be paying that premium.
As a tax payer you wouldn't overpay for anything since this has nothing to do with the bidding process.
A boycott is literally saying "we won't bid on x country's products". It means if the cheapest is from a boycotted country then a more expensive product will be bought instead. I'm baffled at the mental gymnastics one has to do to convince oneself thata boycott has no impact.
Oh, we can absolutely debate their value as an ally.
And if a union wants to boycott Taiwan, or Canada god forbid, they probably should have the right to do so.
It gets a bit more complicated with buyers however, what happens if companies do not want to 'sell to' groups, like 'Republicans' or 'LGBTQ advocates' etc..
I think we probably ought to err on letting people decide who they want to sell and buy from and then be very careful when we interject on that, with a difference to protecting individuals rights, and from specific kinds of harm and/or arbitrary treatment.
Which is all a bit different from the government itself deciding who and who not to buy from.
And if a union wants to boycott Taiwan, or Canada god forbid, they probably should have the right to do so.
It gets a bit more complicated with buyers however, what happens if companies do not want to 'sell to' groups, like 'Republicans' or 'LGBTQ advocates' etc..
I think we probably ought to err on letting people decide who they want to sell and buy from and then be very careful when we interject on that, with a difference to protecting individuals rights, and from specific kinds of harm and/or arbitrary treatment.
Which is all a bit different from the government itself deciding who and who not to buy from.
These boycott laws were not made because the government felt Israel is an important ally, but rather because pro-israel lobbyists pushed for them.
It would be an interesting argument if the Supreme Court struck down a law on the grounds that it was passed in bad faith. Has that been done before?
Aren't a large amount of laws passed in bad faith? For instance all the acronym laws from congress, like the PATRIOT act. Or the solar tax that is under review in California being pushed by electric companies.
These are state contracts at issue here, not federal ones.
I missed that, and it's an important detail.
In fact it’s not a relevant distinction in this context.
https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of...
The First Amendment, along with nearly all the rest, applies to the states and the federal government equally.
https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of...
The First Amendment, along with nearly all the rest, applies to the states and the federal government equally.
[deleted]
My point is that it's not strictly about the first amendment, it's more about political discrimination.
The bill of rights enshrine rights that states can not take away from citizens
Do citizens have a right to enter into business contracts with their state government? They might, but that's for the Supreme Court to decide.
This is a silly and reductive lens that libertarians often apply. Look at the specific examples cited in the article:
> the Arkansas Times [...] was asked to sign [a no-boycott certification] in order to renew its advertising contract with a state technical college.
> A teacher in Kansas was told that she could not participate in the state’s teacher-training program because she refused to sign the anti-boycott form
> A lawyer in Arizona was told that he could not be paid for his work on behalf of incarcerated people because he refused to sign the certification
> a child speech pathologist in Texas lost her contract with a local school district because she refused to sign.
> One town in Texas even briefly required victims of Hurricane Harvey to sign the anti-boycott certification as a condition of receiving disaster relief funds.
I'm sure most people who support these laws would think differently if as a matter of policy a state fired all state contractors (teachers accountants and firefighters, you name it) that were pro life
https://twitter.com/aipac/status/1590362232915132417
Just so you know how entrenched Israel (and a certain race) is inside the US government.
Just so you know how entrenched Israel (and a certain race) is inside the US government.
faxywaxy(1)
28 states have passed laws requiring individuals and businesses that receive government contracts – from substitute teachers to construction workers — to certify that they will not participate in boycotts of Israel or Israeli settlements in the West Bank
What the hell? How can that be enforceable? Ok, so you sign it just so you can get the job, but then don't buy stuff from Israel (or whatever the cause/country/company is you want to boycott) - how could they force you to buy the products? This is just stupidity on the part of these states.
If the right to boycott is to be preserved, the Supreme Court must step in.
Yet somehow I suspect this supreme court will find a way to mess this up.
What the hell? How can that be enforceable? Ok, so you sign it just so you can get the job, but then don't buy stuff from Israel (or whatever the cause/country/company is you want to boycott) - how could they force you to buy the products? This is just stupidity on the part of these states.
If the right to boycott is to be preserved, the Supreme Court must step in.
Yet somehow I suspect this supreme court will find a way to mess this up.
We've consistently tied federal funding to a whole host of restrictions on activities. Receiving federal funding prohibits you from a number of "discrimination / free association" practices that purely private interests are allowed to engage in. States are required to implement a number of policies (most famously the 21 drinking age) as a condition of getting federal money. This seems like another in a long line of constitutional violations.
The courts have decided that the federal govt can put restrictions on money they give the states. It's also not the same thing as states passing laws saying you as an individual or business are disallowed from making your own choices about who you might wish to boycott.
> How can that be enforceable?
Participate in protests boycotting Israel or try to protest any Israel government policy, you will be blamed for boycotting and your company needs to terminate you if they want to continue doing their business, otherwise government will impose a sanction to your employer, then everyone will try to avoid your employer.
Participate in protests boycotting Israel or try to protest any Israel government policy, you will be blamed for boycotting and your company needs to terminate you if they want to continue doing their business, otherwise government will impose a sanction to your employer, then everyone will try to avoid your employer.
This is much more subtle than the article makes it out to be. I don't think I understand it well enough to have a clear position, but here is what comes to mind:
They are asking that companies affirm they won't boycott Isreal (this is almost certainly why the ACLU cares, but anyway) in exchange for government contracts.
Does anybody know how the constitution applies in such situations? What comes to mind is the drug testing requirement for federal contracts. Police can't just come up and randomly drug test you, but you can agree to it in exchange for money. Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.
I understand why the newspaper doesn't sign, I probably wouldn't either. But then I wouldn't expect to get the money.
They are asking that companies affirm they won't boycott Isreal (this is almost certainly why the ACLU cares, but anyway) in exchange for government contracts.
Does anybody know how the constitution applies in such situations? What comes to mind is the drug testing requirement for federal contracts. Police can't just come up and randomly drug test you, but you can agree to it in exchange for money. Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.
I understand why the newspaper doesn't sign, I probably wouldn't either. But then I wouldn't expect to get the money.
> Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.
It isn't different, in your framing, but there are lots of policy reasons why we wouldn't want the state to coerce or compel speech. Especially political speech, as the case is here. And the text of the 1st amendment and years of jurisprudence make freedom of speech different than other rights (just as 5A due process is different than other rights, etc.)
We mostly recognize that it is generally a bad thing for the government to make you say things, unless there is a very good reason to do soon (like, you must label your food products with nutrition info) [0].
To reframe, imagine the government made you sign a pledge that "Abortion is murder" or "Abortion is great, everyone should have one" instead. Or imagine a law that says "All contracts are voidable, if you (a business) and your employees and your outside contractors must not participate in a boycott of Israel." That law might reach extremely far (too far?) if the company is Walmart (~2.3 million employees) and Walmart wants to do business with your state (it does) and Walmart is asking you to sign that pledge to now do business with them.
So, the question is -- if instead of forcing you to say something, and threatening you with jail, is it okay for the state to just refuse to deal with you (as an incredibly powerful market participant). Some will say "That's pretty clever lawyering on the part of the state to do that," while others will be a little more unsettled, thinking if the state can do this, what else can they do?
[0]: https://en.wikipedia.org/wiki/Compelled_speech#Examples_curr...
It isn't different, in your framing, but there are lots of policy reasons why we wouldn't want the state to coerce or compel speech. Especially political speech, as the case is here. And the text of the 1st amendment and years of jurisprudence make freedom of speech different than other rights (just as 5A due process is different than other rights, etc.)
We mostly recognize that it is generally a bad thing for the government to make you say things, unless there is a very good reason to do soon (like, you must label your food products with nutrition info) [0].
To reframe, imagine the government made you sign a pledge that "Abortion is murder" or "Abortion is great, everyone should have one" instead. Or imagine a law that says "All contracts are voidable, if you (a business) and your employees and your outside contractors must not participate in a boycott of Israel." That law might reach extremely far (too far?) if the company is Walmart (~2.3 million employees) and Walmart wants to do business with your state (it does) and Walmart is asking you to sign that pledge to now do business with them.
So, the question is -- if instead of forcing you to say something, and threatening you with jail, is it okay for the state to just refuse to deal with you (as an incredibly powerful market participant). Some will say "That's pretty clever lawyering on the part of the state to do that," while others will be a little more unsettled, thinking if the state can do this, what else can they do?
[0]: https://en.wikipedia.org/wiki/Compelled_speech#Examples_curr...
I agree with you, the question I was wondering about principally was the constitutionality. Regarding your example, something very similar that's actually happening is the requirement for people applying to university faculty positions to submit a "diversity and inclusion statement" which obviously must be very clearly aligned with a particular ideology, in order to be considered. Should this be illegal? It's certainly stupid, it violates all kinds or political freedom, but then you dont have to work at a university either.
> Should this be illegal? It's certainly stupid, it violates all kinds or political freedom, but then you don't have to work at a university either.
This is a tough question because I could imagine a DEI statement that wasn't plainly stupid, and which had a strong purpose, just as easily as I could imagine one that was plainly idiotic. And university education sounds like it would be a special case as well (that is -- have all sorts of factors not present in other cases). A non-crazy DEI for a low level state prison guard? Probably nuts. For a hiring manager? Maybe less so.
> I agree with you, the question I was wondering about principally was the constitutionality.
Appreciate your inquiry, and I'm not an expert in this area of the law, but as an observer, the reach of the 1st amendment can seem sometimes crazy expansive, but I think I'm mostly glad it is?
For instance, my town had an ordinance that made panhandling at busy intersections illegal (one new way to outlaw being poor but which had a facially valid purpose -- safety). ACLU sued and said this was a limitation on the 1st amendment rights of the panhandlers and won. Took away millions in attorneys fees.
This seems like unsettled law? Hopefully a person of conscience will sue.
This is a tough question because I could imagine a DEI statement that wasn't plainly stupid, and which had a strong purpose, just as easily as I could imagine one that was plainly idiotic. And university education sounds like it would be a special case as well (that is -- have all sorts of factors not present in other cases). A non-crazy DEI for a low level state prison guard? Probably nuts. For a hiring manager? Maybe less so.
> I agree with you, the question I was wondering about principally was the constitutionality.
Appreciate your inquiry, and I'm not an expert in this area of the law, but as an observer, the reach of the 1st amendment can seem sometimes crazy expansive, but I think I'm mostly glad it is?
For instance, my town had an ordinance that made panhandling at busy intersections illegal (one new way to outlaw being poor but which had a facially valid purpose -- safety). ACLU sued and said this was a limitation on the 1st amendment rights of the panhandlers and won. Took away millions in attorneys fees.
This seems like unsettled law? Hopefully a person of conscience will sue.
I'm not sure it's all that subtle. US governments generally can't use business contracts to compel speech; striking these kinds of rules down was part of tearing down midcentury patronage networks.
We never tore down patronage networks. Trickle down is essentially the same mechanics in the abstract, hidden by contemporary coded virtue signaling, and legal jargon.
Families that benefited from 50s-60s social programs legislated them away in the 80s, leverage mathematical inference to assign themselves exorbitant wealth through arbitrary valuations they decide on, buy up the most valuable assets, and pay as little as possible to us to maintain them.
Horse and Sparrow economics is from a similar era of political thought as spoils systems.
A $200k salary in the 80s had the buying power of $600k now. Past winners were not about to have their legacy deflated, so they changed the rules.
Families that benefited from 50s-60s social programs legislated them away in the 80s, leverage mathematical inference to assign themselves exorbitant wealth through arbitrary valuations they decide on, buy up the most valuable assets, and pay as little as possible to us to maintain them.
Horse and Sparrow economics is from a similar era of political thought as spoils systems.
A $200k salary in the 80s had the buying power of $600k now. Past winners were not about to have their legacy deflated, so they changed the rules.
Does anybody know how the constitution applies in such situations?
Nobody does. That's the point. Circuit courts have disagreed, so the Supreme Court will define what the Constitution says.
Nobody does. That's the point. Circuit courts have disagreed, so the Supreme Court will define what the Constitution says.
Imagine you haven't purchased anything from Israel recently. Are you boycotting them? Presumably no, as many people will be in that situation just by coincidence. Then what does count? The reality is making a public statement saying you're boycotting Israel.
And there in lies the problem, the state is trying to punish people for making entirely legal statements they don't approve of.
And there in lies the problem, the state is trying to punish people for making entirely legal statements they don't approve of.
> drug testing requirement for federal contracts.
You can't compare drug testing requirement with Israel case. They do drug testing because you might accidentally create a problem to the government if you are addicted or regularly take drugs: You might share confidential information, introduce bug to the system or accidentally forget to follow processes.
Where is the logic with anti-boycott rules when it comes Israel?
You can't compare drug testing requirement with Israel case. They do drug testing because you might accidentally create a problem to the government if you are addicted or regularly take drugs: You might share confidential information, introduce bug to the system or accidentally forget to follow processes.
Where is the logic with anti-boycott rules when it comes Israel?
If it was a requirement from a private contractor that would probably be fine (and could be an exercise of the First Amendment by itself). But with government contracts it looks like the amendment should be applied here.
Say that a company is called The White Power Group and is known to spew what most would consider hate speech. They bid to provide government offices with toilet paper. Should the government be allowed to turn them down?
Yes, because at a basic level, government officials don't want money from contracts to go fund things that undermine the government itself, or the safety of its citizens.
In this case white supremacists have a long history of using violence.
In this case white supremacists have a long history of using violence.
Then we go down the path of deciding what hate speech legally is, what the line is before the gov't will refuse to do business with someone, etc. Not to mention the policy shifting every time POTUS switches party. What a mess.
What about Chick-Fil-A or Hobby Lobby? Hate speech? Depends on who you ask.
What about Chick-Fil-A or Hobby Lobby? Hate speech? Depends on who you ask.
No. We'd define what groups are tied to domestic or foreign terrorism. For whatever reason, white power groups can't keep their hands clean of violence -- likely because violence is actually tied to their rhetoric.
If its written on the toilet paper, yes
Interesting, I had no idea that this was a thing. I think it is perfectly sensible to prohibit employees from using their personal conscience to boycott with company (or government) funds, as it isn't their own money. But prohibiting them personally? That should be protected absolutely. And companies should be permitted to boycott as well, when the decision is actually a company decision and not just a rando employee.
I could understand the US government not allowing certain companies to boycott foreign governments, as you start getting companies affecting foreign policy, which isn't a great position to be in. To me, this should be limited to limits the federal government can place on business conducted specifically for the federal government, and shouldn't extend to individuals working for that company. For example, they should be able to specify that a national security company has to be willing to purchase parts from a specific foreign country for the business it does with the federal government. I feel like anything other than that should be protected speech.
> The court of appeals reasoned that because one can’t know the meaning of a decision not to purchase from a business unless it is accompanied by speech, the boycott itself is not protected, and the state is free to single out and penalize the boycotts it disfavors.
Wow. Using the same logic as that ruling, donating to politicians is not protected by the 1st Amendment unless you also include a memo making clear your intent...
This feels like more "I'll know it when I see it" but with intent instead of porn.
Wow. Using the same logic as that ruling, donating to politicians is not protected by the 1st Amendment unless you also include a memo making clear your intent...
This feels like more "I'll know it when I see it" but with intent instead of porn.
The logic is very simple. You just can’t boycott Israel.
Edit: And you can’t post about how you can’t boycott Israel either.
Edit: And you can’t post about how you can’t boycott Israel either.
So a Republican legislature could pass a law in a state saying that you can't contribute money to a Democratic candidate if you want to work for the state as a contractor or employee - that seems pretty close to what they've done here, it's just the opposite of a boycott (giving money instead of withholding it)
To steelman the other side, you can’t work for the US government while antagonizing a formal ally of the US government.
To steelman you need to show the same standard would be applied to formal allies besides Israel. I’m very curious to hear about any examples. I haven’t been able to find any. For example there doesn’t appear to be any action to restrict the Morocco boycott movement, despite their being the USA’s longest formal ally.
Also, remember the risible anti-French boycotts during the Bush 2 administration because they weren’t enthusiastic about an obviously fake casus belli? France was and is an important formal ally of the USA and those boycotts would never be legislatively opposed.
Also, remember the risible anti-French boycotts during the Bush 2 administration because they weren’t enthusiastic about an obviously fake casus belli? France was and is an important formal ally of the USA and those boycotts would never be legislatively opposed.
Are there any formal allies that are primarily defined by ethnicity and are seeing boycotts against them (which often look very much like they're boycotting because of ethnicity, not political ideology, e.g. they wouldn't boycott others for doing the same)?
Israel is not defined by ethnicity, I can get Israeli citizenship if I claim that I have converted to Judaism.
If we go further with this reasoning we should also shield Saudi Arabia, UAE, Vatican City, Maldives, etc.. from boycott.
If we go further with this reasoning we should also shield Saudi Arabia, UAE, Vatican City, Maldives, etc.. from boycott.
> Israel is not defined by ethnicity, I can get Israeli citizenship if I claim that I have converted to Judaism.
Don’t they only accept ultra-orthodox conversions?[1] Good luck with that.
Jewish conversion is much more akin to a tribal adoption into the community than it is to conversion in the other Abrahamic faiths. For Christianity, depending on the denomination, conversion can be as little as saying you accept Jesus as Lord and Savior. And in Islam literally all you have to do is sincerely say the shahada and you’re Muslim.
Edit: [1] looks like there was just recently a supreme court case permitting non orthodox conversions, but I expect the Knesset will overturn it.
https://www.timesofisrael.com/israels-top-court-recognizes-r...
Don’t they only accept ultra-orthodox conversions?[1] Good luck with that.
Jewish conversion is much more akin to a tribal adoption into the community than it is to conversion in the other Abrahamic faiths. For Christianity, depending on the denomination, conversion can be as little as saying you accept Jesus as Lord and Savior. And in Islam literally all you have to do is sincerely say the shahada and you’re Muslim.
Edit: [1] looks like there was just recently a supreme court case permitting non orthodox conversions, but I expect the Knesset will overturn it.
https://www.timesofisrael.com/israels-top-court-recognizes-r...
Italy, Japan, etc define their nationality through ethnicity (ius sangui). Greece defines nationality in a very convoluted way, but its basically trying to find ethnic Greeks.
In fact nationality through ethnicity is the norm. What isn't common is that every country but Israel is being pressured to change their nationality laws.
In fact nationality through ethnicity is the norm. What isn't common is that every country but Israel is being pressured to change their nationality laws.
I haven't seen calls for boycott against Italy, Japan or Greece, especially not because of the ethnicity of the inhabitants. I wonder if we'd see it if there was a sizable Anti-Italian movement in the US.
You asked if other countries have ethnic nationality, and I pointed out that most do.
I added that, while I read The Economist and other "thought leader" rags call for a liberation of Japan, Italy, etc nationality law, I have never read any respectable editorial arguing the same for Israel.
I did not mention anything about boycotts. but, since you asked, Japan and Italy were both boycotted (blockaded, actually) in the 30s for occupying territories and putting settlers there.
I added that, while I read The Economist and other "thought leader" rags call for a liberation of Japan, Italy, etc nationality law, I have never read any respectable editorial arguing the same for Israel.
I did not mention anything about boycotts. but, since you asked, Japan and Italy were both boycotted (blockaded, actually) in the 30s for occupying territories and putting settlers there.
These are all state laws, not federal.
Thanks, that is kind of weird. US states aren’t supposed to engage in foreign policy.
Article I section 10 of the US constitution specifically enumerates what states aren’t permitted to do. It’s not a blanket prohibition on engaging in foreign policy. And that’s not even bringing in the 9th and 10th amendments. Section 10 itself enumerates a circumstance under which a State may wage war for example.
Indeed, as anyone who has driven into California from Oregon knows, the states are even able to execute foreign policy against other states. Specifically for agricultural inspections in that case.
Indeed, as anyone who has driven into California from Oregon knows, the states are even able to execute foreign policy against other states. Specifically for agricultural inspections in that case.
I think Article I section 8 may also apply, specifically the Commerce clause:
> The Congress shall have Power [...] To regulate Commerce with foreign Nations
A state prohibiting or requiring the purchase of goods from a particular foreign nation would seem to be encroaching on a Federal power. Especially if this bit gets interpreted as broadly as the next bit does (regulating commerce "among the several States").
> The Congress shall have Power [...] To regulate Commerce with foreign Nations
A state prohibiting or requiring the purchase of goods from a particular foreign nation would seem to be encroaching on a Federal power. Especially if this bit gets interpreted as broadly as the next bit does (regulating commerce "among the several States").
Actually this is a constitutional right
I think that this cuts both ways to some extent. The references case is about not awarding government contracts based on a company’s not agreeing to not boycott Israel.
To be clear, no one is arguing that companies can’t boycott Israel. They are simply saying that doing so would invalidate your ability to get government contracts in the given state.
The problem is that it cuts both ways. If you say that this is an infringement of first amendment rights, then the logical extension of that is that the government can never refuse a contract based on a company’s free speech. So for example, say Acme Co openly proclaims their support for the Ku Klux Klan… should the state of Michigan be allowed to say that they won’t purchase toilet paper from them?
To be clear, no one is arguing that companies can’t boycott Israel. They are simply saying that doing so would invalidate your ability to get government contracts in the given state.
The problem is that it cuts both ways. If you say that this is an infringement of first amendment rights, then the logical extension of that is that the government can never refuse a contract based on a company’s free speech. So for example, say Acme Co openly proclaims their support for the Ku Klux Klan… should the state of Michigan be allowed to say that they won’t purchase toilet paper from them?
The issue there is that… if you’re invalidated on that basis alone, then that seems to go against the First Amendment: “Congress shall make no law … abridging the freedom of speech” since, in this example, it’s quite clear the _only_ thing that would disqualify you is your speech (specifically, your expression of intent to boycott)
At its most extreme, then there’s no reason a GOP-run government could say “any company that has ever donated to, or has an employee who has donated to, a Democrat is ineligible for state contracts” in a bid to freeze donations to the opposition party. The only thing that’s been replaced in that sentence from current laws is “The BDS Movement” with “Democrat”. Obviously that would be an infringement of political speech.
Adding in the KKK or other hate groups into the mix doesn’t really muddy the waters— if a company is (reasonably suspected of) not adhering to other laws, like the Civil Rights Act (and any other equivalent state laws about protected classes), then the state would likely be prohibited anyways from continuing with such a contract, so it’s not the same.
At its most extreme, then there’s no reason a GOP-run government could say “any company that has ever donated to, or has an employee who has donated to, a Democrat is ineligible for state contracts” in a bid to freeze donations to the opposition party. The only thing that’s been replaced in that sentence from current laws is “The BDS Movement” with “Democrat”. Obviously that would be an infringement of political speech.
Adding in the KKK or other hate groups into the mix doesn’t really muddy the waters— if a company is (reasonably suspected of) not adhering to other laws, like the Civil Rights Act (and any other equivalent state laws about protected classes), then the state would likely be prohibited anyways from continuing with such a contract, so it’s not the same.
> So for example, say Acme Co openly proclaims their support for the Ku Klux Klan… should the state of Michigan be allowed to say that they won’t purchase toilet paper from them?
Absolutely not. There should be no political tests, no matter how odious the politics for government contracts.
Absolutely not. There should be no political tests, no matter how odious the politics for government contracts.
At the root of this issue is Israel's treatment of Palestine.
Solve that, and boycotts will cease.
Everything else, including any anti-bds law, is ultimately just a smoke screen.
Is it normal for a government contract to mandate that the contractor does or does not profess a specific political opinion? This feels very not normal.
It's not normal. It's only for Israel.
anti-bds legislation is relatively common
https://www.jewishvirtuallibrary.org/anti-bds-legislation
> To date, 35 states have adopted laws, executive orders, or resolutions designed to discourage boycotts against Israel. Separately, the U.S. Congress is also considering anti-boycott legislation
> Tennessee [...] state contracts must include “a written certification that the company is not currently engaged in, and will not for the duration of the contract engage in a boycott of Israel.”
> South Carolina’s state legislature passed legislation banning the state from entering into contracts with companies that participate in certain boycotts.
> Illinois’ state pension announced in December 2021 that it will divest from Unilever, the parent company of Ben and Jerry’s, over the ice cream company’s decision to stop selling ice cream in the West Bank.
https://www.jewishvirtuallibrary.org/anti-bds-legislation
> To date, 35 states have adopted laws, executive orders, or resolutions designed to discourage boycotts against Israel. Separately, the U.S. Congress is also considering anti-boycott legislation
> Tennessee [...] state contracts must include “a written certification that the company is not currently engaged in, and will not for the duration of the contract engage in a boycott of Israel.”
> South Carolina’s state legislature passed legislation banning the state from entering into contracts with companies that participate in certain boycotts.
> Illinois’ state pension announced in December 2021 that it will divest from Unilever, the parent company of Ben and Jerry’s, over the ice cream company’s decision to stop selling ice cream in the West Bank.
I bring this particular issue up anytime I hear that cancel culture was a contribution of the political left.
Boycotting is not cancel culture, IMO. It's one thing to vote with your wallet, or vocally protest against a company. It's another thing entirely to go after someone personally and attempt to ruin their life for something they've done to offend you. I suspect that's the problem most people are thinking of when they use the term 'cancel culture.' Like Justine Sacco. Totally horrid leveraging of the power of the Internet to destroy an individual.
I’ve very often heard cancel culture used to refer to “cancelling” of companies so I’m not sure I agree with that statement.
Also the line can be blurry with celebrities since they will engage in business deals.
Also the line can be blurry with celebrities since they will engage in business deals.
I think there is a scale.
I think it's unacceptable to send the mob after an individual to destroy their life. I think there is more wiggle room when the target is a celebrity who signed up to be a public figure. Same with politicians. Not that it should completely unlimited, mind you, but if someone chooses to be a public figure then they are accepting that some people will be critical of them.
With companies, I don't know if there should be much, if any limit to what gets said. Companies are not people, Mitt Romney's opinion notwithstanding. To me it becomes a moral wrong when there is a human target.
I think it's unacceptable to send the mob after an individual to destroy their life. I think there is more wiggle room when the target is a celebrity who signed up to be a public figure. Same with politicians. Not that it should completely unlimited, mind you, but if someone chooses to be a public figure then they are accepting that some people will be critical of them.
With companies, I don't know if there should be much, if any limit to what gets said. Companies are not people, Mitt Romney's opinion notwithstanding. To me it becomes a moral wrong when there is a human target.
State governments can and have fired people for their political speech under these laws.
Especially when Bari Weiss gets in on it. Palestinians were the first people getting "cancelled" on campus, and we would have never heard of Bari Weiss if she hadn't been trying to get her campus authorities to restrain Palestinian speech.
People have been doing cancel culture from time immemorial. It seems to be a default in human behavior unless there are ideas specially saying, “don’t do this.” These ideas used to be called “liberalism.”
What seems to have changed, from my perspective, is that liberalism has stopped being the values system championed by the left, and instead what we have are two different visions that are both more or less authoritarian.
What seems to have changed, from my perspective, is that liberalism has stopped being the values system championed by the left, and instead what we have are two different visions that are both more or less authoritarian.
I wasn't aware of this issue, and as framed by the ACLU it's pretty alarming.
That said, experience tells me to always get both sides of a story. Can anyone suggest a good representation of the other sides' position?
That said, experience tells me to always get both sides of a story. Can anyone suggest a good representation of the other sides' position?
The (unconvincing) argument is that boycotting Israel is discriminating on the basis of religion and ethnicity, and is therefore not protected under the 1st Amendment (for the same reason laws banning racial discrimination don’t violate the 1st amendment.)
It’s not a very good argument imo.
It’s not a very good argument imo.
Yeah it makes no sense. You can't boycott Israel, but the government can sanction Iran etc.
> That said, experience tells me to always get both sides of a story. Can anyone suggest a good representation of the other sides' position?
I've never understood why this is seen as a good idea. In the spirit of your statement, can you suggest a good representation of why you think this is worthwhile?
There's no natural law that issues should have two sides, and I think forcing everything into that framing is part of why our media discourse is so broken. This also promotes the misconception the truth lies in the middle, which encourages people acting in bad faith to pick extreme positions and skew the average.
I've never understood why this is seen as a good idea. In the spirit of your statement, can you suggest a good representation of why you think this is worthwhile?
There's no natural law that issues should have two sides, and I think forcing everything into that framing is part of why our media discourse is so broken. This also promotes the misconception the truth lies in the middle, which encourages people acting in bad faith to pick extreme positions and skew the average.
It's not really that complicated, people pretend they are boycotting Israel because of issues with Israel, while in reality it's just antisemitism.
The proof comes when you ask them who else are they boycotting, and it's no one. You get even more proof when you start asking them detailed questions about what's going on in Israel and they have no clue. Or they say things that aren't actually true.
The 1% who are intellectually honest about it are easily dwarfed by the 99% who are doing it out of hate.
The proof comes when you ask them who else are they boycotting, and it's no one. You get even more proof when you start asking them detailed questions about what's going on in Israel and they have no clue. Or they say things that aren't actually true.
The 1% who are intellectually honest about it are easily dwarfed by the 99% who are doing it out of hate.
So what you are saying that it is okay to restrict freedoms based on guesses of people intentions?
> and it's no one
Which means they don't boycott other jews owned business, which invalidates your mental gymnastics.
> when you start asking them detailed questions about what's going on in Israel and they have no clue
So it is okay to outlaw boycotting if X country if some of the boycotters deny to share their intent?
> and it's no one
Which means they don't boycott other jews owned business, which invalidates your mental gymnastics.
> when you start asking them detailed questions about what's going on in Israel and they have no clue
So it is okay to outlaw boycotting if X country if some of the boycotters deny to share their intent?
Those claims would benefit from supporting details. Somehow you know the hearts of humans?
I'm Jewish, the amount of antisemitism online has skyrocketed, and virtually all of it pretends to be "legitimate criticism of Israel", because blatant antisemitism gets blocked, but if you pretend it's about Israel then you confuse people, and you don't get blocked.
In all of my time online I've encountered actual criticism of Israel only a handful of times. Under 1%.
One easy way to tell: Are they criticizing all of Israel, or a specific policy?
This has more info: https://en.wikipedia.org/wiki/Three_Ds_of_antisemitism
In all of my time online I've encountered actual criticism of Israel only a handful of times. Under 1%.
One easy way to tell: Are they criticizing all of Israel, or a specific policy?
This has more info: https://en.wikipedia.org/wiki/Three_Ds_of_antisemitism
While you may(or not) be right about rise in antisemitism, there also seems to be a lot more videos surfacing of stuff that doesn't reflect well on Israel. I consider myself pretty unbiased in this, I have absolutely no opinions about ethnicity etc and have often come to defense of Israel in some discussions but I can honestly say that my own view has soured a little bit. The killing(and denial) of that journalist, and that video of a funeral procession spring to mind.
Starting to remind me of Northern Irish loyalists(who happen to revere Israel), which imo is a pretty ugly movement.
Nothing about this is inherent to the people or country but (I think) like loyalism, comes from a degree of insecurity that can manifest as truculence
I don't know, I think you're being way too dismissive about many people's intentions.
I've had plenty of arguments here on HN about Israel, and it doesn't seem like most people are just antisemites. Many people have concrete, legitimate criticisms of Israel (and frankly, there's plenty to criticize.)
Sure, some could be motivated by antisemitism, but 99% of people? That doesn't seem right to me. At all.
(E.g. in most arguments, anyone even a little knowledgeable will argue specifically against settlements or against certain actions of the IDF, not just blanket "against Israel existing.")
I've had plenty of arguments here on HN about Israel, and it doesn't seem like most people are just antisemites. Many people have concrete, legitimate criticisms of Israel (and frankly, there's plenty to criticize.)
Sure, some could be motivated by antisemitism, but 99% of people? That doesn't seem right to me. At all.
(E.g. in most arguments, anyone even a little knowledgeable will argue specifically against settlements or against certain actions of the IDF, not just blanket "against Israel existing.")
These laws are passed in states who are politically dominated by apocalyptic evangelical christians who believe that the state of Israel is the only thing holding back literal Armageddon
I'm not super well versed in evangelical christianity but I think they want Israel to start Armageddon, their goal is bring it about, not to avoid it:
https://www.businessinsider.com/battle-armageddon-israel-eva...
https://www.businessinsider.com/battle-armageddon-israel-eva...
Hmm. I can see there may be first amendment issue here and I realize the issue is state governments limiting who can receive state funds. However, the US federal government used withholding funds to force state governments to pass/amend certain laws. For example, congress would withhold highway funds from any state that did not raise the drinking age to at least 21 [0].
Obviously, this isn't exactly the same thing, but it is an example of a US government using the withholding of funding to achieve a policy goal.
[0] https://www.quora.com/Can-the-federal-government-withhold-fe...
Obviously, this isn't exactly the same thing, but it is an example of a US government using the withholding of funding to achieve a policy goal.
[0] https://www.quora.com/Can-the-federal-government-withhold-fe...
My question is, does the first amendment apply to government employees and contractors in their capacity of doing work for the state as opposed to as individuals?
These people can and do get fired for saying the wrong thing on social media or getting recorded acting like a jerk in public for example, so the first amendment does not apply to them.
I agree that the government cannot prevent citizens from boycotting but they can prevent themselves from boycotting, what I mean is employees and contractors are part of the state, agents if you will.
The 1st and I believe other amendments use the term abridging:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Termination of employment or contract is not abridging those people's freedoms, they can still boycott. The ACLU's argument boils down to whether or not termination of a contract by the state equals a punishment or if the threat of termination equals a punishment that prevents a person from excercising their freedom.
If it is a punishment or a restriction, then effectively, state employees and contractors can do anything protected by the constitution and keep their jobs. For an extreme example, can a contracor for the state police associate with white nationalists and say things in public like how the police will be on their side in their typical "race war" propaganda, and state will have to maintain their contract? Or can a teacher at an elementary school post online how he likes young girls and not lose his job because that was freedom of speech? The latter one is not political but the former example of a white nationalist arguably is political because one can argue (not that I do) that boycotting israel and desiring war against the jews (white nationalist propaganda) are both free expressions of the person's sentiment even though boycotting is an expression of disagreement and my example is one of anti-semetism.
I think federal employment law should protect these people so they can protest and boycott but I cannot agree that the constitution protects employees and other agents of the state.
These people can and do get fired for saying the wrong thing on social media or getting recorded acting like a jerk in public for example, so the first amendment does not apply to them.
I agree that the government cannot prevent citizens from boycotting but they can prevent themselves from boycotting, what I mean is employees and contractors are part of the state, agents if you will.
The 1st and I believe other amendments use the term abridging:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Termination of employment or contract is not abridging those people's freedoms, they can still boycott. The ACLU's argument boils down to whether or not termination of a contract by the state equals a punishment or if the threat of termination equals a punishment that prevents a person from excercising their freedom.
If it is a punishment or a restriction, then effectively, state employees and contractors can do anything protected by the constitution and keep their jobs. For an extreme example, can a contracor for the state police associate with white nationalists and say things in public like how the police will be on their side in their typical "race war" propaganda, and state will have to maintain their contract? Or can a teacher at an elementary school post online how he likes young girls and not lose his job because that was freedom of speech? The latter one is not political but the former example of a white nationalist arguably is political because one can argue (not that I do) that boycotting israel and desiring war against the jews (white nationalist propaganda) are both free expressions of the person's sentiment even though boycotting is an expression of disagreement and my example is one of anti-semetism.
I think federal employment law should protect these people so they can protest and boycott but I cannot agree that the constitution protects employees and other agents of the state.
It’s sadly unsurprising that the ACLU has taken the opposite position on use of government contracting to achieve that the state cannot do directly when the liberty at issue is religious rather than speech: https://www.aclupa.org/en/news/what-fulton-v-city-philadelph...
That case is about letting people use religion as an excuse to discriminate against people they don’t like.
Specifically, that case is about governments forcing adoption services to work with gay couples if they want government contracts. Similarly, this case is about governments forcing private businesses to do business with Israelis if they want to get government contracts.
The government can enforce rules against discrimination and religion doesn’t mean you get a free pass from laws you don’t like.
There is no anti-discrimination law with respect to adoption services, and it's doubtful such a law would be constitutional. The 14th amendment applies to governments, not individuals. To regulate private conduct, the government needs some other hook. Usually, this is the commerce power, which is the basis of non-discrimination laws in public accommodations or housing. That's why things like private clubs and rentals in owner-occupied buildings are exempt from those laws. In other cases, such as non-discrimination in education, the hook is acceptance of federal funding.
The question in both the adoption case and the anti-BDS case is the extent to which the government can use its position as a purchaser to control otherwise legal private conduct.
The question in both the adoption case and the anti-BDS case is the extent to which the government can use its position as a purchaser to control otherwise legal private conduct.
Boycotting Israel, huh? Big fight you got there ACLU.
The ACLU has no credibility and no consistency any longer — something they rightly could take great credit for. No point in following them.
I’ve lost all respect for ACLU. In 2014 they were warning against forced vaccinations, and then during Covid they changed their mind and were all for firing public and private employees if they refused the jab. They’re just an extension of the left’s ideology at this point.
For those unaware, the Foundation for Individual Rights and Expression has to some extent taken up the mantle for causes that the ACLU abandoned after being ideologically compromised.
https://www.thefire.org/
https://www.thefire.org/
FIRE seems to agree with the ACLU on this issue: https://www.thefire.org/news/fire-asks-supreme-court-uphold-...
> Despite the clear precedent holding a boycott constitutes protected expression, the Eighth Circuit ruled against the Times. ... Today, FIRE and the Forum for Constitutional Rights filed an amicus curiae — “friend of the court” — brief in support of the Arkansas Times’ request for the Supreme Court to hear its case.
> Despite the clear precedent holding a boycott constitutes protected expression, the Eighth Circuit ruled against the Times. ... Today, FIRE and the Forum for Constitutional Rights filed an amicus curiae — “friend of the court” — brief in support of the Arkansas Times’ request for the Supreme Court to hear its case.
They’ve also literally promoted banning books.
The ACLU made its name defending the free speech rights of despicable parties on principle. Because, among other reasons, allowing exceptions to the protection of civil liberties terminally all-but-guarantees that such exceptions will be abused in unjust ways.
But there is no longer any principle they stand on. Politically compromised and merely self-perpetuating for the cynical insiders willing to bend the machinery to their selfish ends.
Entropy has taken the ACLU, and it’s just a cancer on the body politic now.
The ACLU made its name defending the free speech rights of despicable parties on principle. Because, among other reasons, allowing exceptions to the protection of civil liberties terminally all-but-guarantees that such exceptions will be abused in unjust ways.
But there is no longer any principle they stand on. Politically compromised and merely self-perpetuating for the cynical insiders willing to bend the machinery to their selfish ends.
Entropy has taken the ACLU, and it’s just a cancer on the body politic now.
> They’ve also literally promoted banning books.
Which ones? Was it the ACLU as an organization, or an employee of the ACLU?
Which ones? Was it the ACLU as an organization, or an employee of the ACLU?
The ACLU wants to keep intelligent design out of schools [1]. ID is something the Supreme Court upheld as religious [2]
1. https://www.catholicleague.org/the-book-banning-aclu/
2. https://en.wikipedia.org/wiki/Edwards_v._Aguillard https://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_Schoo...
Fighting to stop censorship while also fighting to keep religious texts out of the public school system isn't contradictory to me. Also seems a little disingenuous when the religious right in the US does the vast majority of book banning.
1. https://www.catholicleague.org/the-book-banning-aclu/
2. https://en.wikipedia.org/wiki/Edwards_v._Aguillard https://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_Schoo...
Fighting to stop censorship while also fighting to keep religious texts out of the public school system isn't contradictory to me. Also seems a little disingenuous when the religious right in the US does the vast majority of book banning.
> Fighting to stop censorship while also fighting to keep religious texts out of the public school system isn't contradictory to me.
Right, and I think the Catholic League’s framing is disingenuous. From the opinion[1], the ACLU wasn’t trying to ban the textbook, they were saying that teachers shouldn’t be compelled to issue a canned statement to their class which promotes a religious text as an alternative to their scientific curriculum.
[1] https://www.aclu.org/sites/default/files/field_document/asse...
Right, and I think the Catholic League’s framing is disingenuous. From the opinion[1], the ACLU wasn’t trying to ban the textbook, they were saying that teachers shouldn’t be compelled to issue a canned statement to their class which promotes a religious text as an alternative to their scientific curriculum.
[1] https://www.aclu.org/sites/default/files/field_document/asse...
You’re ignoring the part where in 2014 they specifically said that if an individual not being vaccinated causes harm to others then mandating they be vaccinated is sometimes necessary and likely constitutional. It’s the same as other diseases, the government normally can’t jail you without trial but if you have smallpox you bet you’ll be quarantined against your will.
Fast forward to 2021 and that’s the reasoning they use.
I don’t really care if you disagree with how they view the situation — that’s fine. But the ACLU is logically consistent on this issue.
Fast forward to 2021 and that’s the reasoning they use.
I don’t really care if you disagree with how they view the situation — that’s fine. But the ACLU is logically consistent on this issue.
Are you taking about the 2008 report[1] where the ACLU argued against a law that would make refusing a vaccine a misdemeanor. I don't think anyone was pushing for that during Covid. During Covid they were saying employers and schools should be allowed to require them, but not making it criminal to refuse it.
[1] https://www.aclu.org/sites/default/files/pdfs/privacy/pemic_...
[1] https://www.aclu.org/sites/default/files/pdfs/privacy/pemic_...
gladiatr72(1)
It is genuinely offensive to hear them comparing the Alabama bus boycotts to companies receiving government contracts. They know perfectly well that an individual right to boycott has never been in danger; they're just rattling the collection plate.
> They know perfectly well that an individual right to boycott has never been in danger;
They claim exactly the opposite:
> Since 2016, 28 states have passed laws requiring individuals and businesses that receive government contracts – from substitute teachers to construction workers — to certify that they will not participate in boycotts of Israel or Israeli settlements in the West Bank.
And they go on to provide examples of individuals being coerced to sign an anti-boycott pledge, not just corporations.
Are you saying the ACLU is making all of that up?
They claim exactly the opposite:
> Since 2016, 28 states have passed laws requiring individuals and businesses that receive government contracts – from substitute teachers to construction workers — to certify that they will not participate in boycotts of Israel or Israeli settlements in the West Bank.
And they go on to provide examples of individuals being coerced to sign an anti-boycott pledge, not just corporations.
Are you saying the ACLU is making all of that up?
You appear to be misunderstanding 'individual right'. You have a right to boycott Israel in all of those states. The government just won't award you any contracts. You do not have a right to government contracts. This is very different from the government directly banning you from doing something. They then go on to imply the opposite, that this decision would have allowed banning the Alabama bus boycotts, which is flatly false. The example they gave of an individual was indeed an example of a law beyond the awarding government contracts - which was shrunk down in response to avoid the inevitable judgment of unconstitutionality. There was never any chance that the individual right was at risk.
The ACLU cited multiple examples, from more than one state, of individuals being coerced to sign anti-boycott pledges.
Unless you are willing to actually refute those examples (plural!) as untrue, it is absurd for you to claim that there's no threat to the individual right to boycott. Simply asserting that all such overreaches will eventually and inevitably be corrected by the courts does not mean the rights are not at risk, and being infringed in the meantime, by multiple laws in multiple states.
Unless you are willing to actually refute those examples (plural!) as untrue, it is absurd for you to claim that there's no threat to the individual right to boycott. Simply asserting that all such overreaches will eventually and inevitably be corrected by the courts does not mean the rights are not at risk, and being infringed in the meantime, by multiple laws in multiple states.
OP seems very incensed even before reading the article.
> They know perfectly well that an individual right to boycott has never been in danger; they're just rattling the collection plate.
It seems it was in this case, but for their intervention.
https://eu.cjonline.com/story/news/politics/state/2018/06/29...
It seems it was in this case, but for their intervention.
https://eu.cjonline.com/story/news/politics/state/2018/06/29...
More accurately, but for the judge's judgment. Unconstitutional laws get passed every day; something has only gone wrong if they are upheld.
this seems equally important. A company should not be disadvantaged when competing for government contracts because of an unrelated stance. This extends directly to individuals. What if an employee at the company is an outspoken critic on one of the topics that can get you thrown out of a contract competition?
It's an attempt to silence organizations by disadvantaging them economically. And we all know that if it wasn't Israel related it'd never fly. Imagine for even one second a company was excluded from a contract because of its stance on gun rights, abortion or gay rights. You'd have either half of the country on your mattress within five seconds.
It's an attempt to silence organizations by disadvantaging them economically. And we all know that if it wasn't Israel related it'd never fly. Imagine for even one second a company was excluded from a contract because of its stance on gun rights, abortion or gay rights. You'd have either half of the country on your mattress within five seconds.
No this is about the government end running around the first amendment by making companies violate people’s rights instead. If boycotts are protected speech then the government should not be allowed to put up money on the condition that the people who take it and their employees give up this right.