By Mark Goldfeder
A majority of states have adopted bills that say people who do business with them must abide by their policies related to fair business practices, including anti-discrimination rules. One motivation was the rise of the antisemitic boycott, divestment, and sanctions movement — a coordinated effort to disrupt the economic stability of the state of Israel, persons conducting business with Israel, and individuals the movement deems too closely affiliated with Israel.
Georgia passed such a law, which last week became the subject of a federal court ruling in Martin v. Wrigley. But the details of this case have been widely misreported. No, the decision did not strike the law down as unconstitutional. Rather, the court declined to dismiss the case outright, reasoning that, if all disputed facts are construed most favorably toward the plaintiff, then there were “enough facts to state a claim to relief that is plausible on its face.”
None of the various states' “anti-BDS” laws ban or punish speech that is critical of Israel, target advocacy for Palestinian rights, or stop anyone from boycotting Israel. They simply say that if you boycott Israel in a discriminatory manner, the state can choose not to do business with you.
The law in question only affects discriminatory commercial conduct, which can only be proven when it is stated explicitly by the discriminator. So, for example, when someone advertises to the public that their commercial conduct is intentionally discriminatory, it can and should be regulated by anti-discrimination laws.
In theory, this should not be controversial. The Supreme Court has consistently held that state and federal anti-discrimination laws do not violate the First Amendment. States have a compelling interest in preventing invidious discrimination, which they can implement by imposing conduct-based regulations on government contractors. Commercial decisions are also not protected by the First Amendment.
To be fair, a casual observer might be confused by the term "boycott," which in other contexts could refer to activities protected by the First Amendment. But the law in question does not regulate such activities. As the Supreme Court ruled in NAACP v. Claiborne Hardware Co., a case about a primary boycott of white-owned businesses to protest racial discrimination in Mississippi, the “right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”
No one disagrees with that principle, but the court here misread Claiborne as saying that all boycott activities are protected. It did not say so, and, in fact, they are not.
Claiborne affirmed that those elements of a boycott that do involve protected First Amendment activity do not lose that protection just because they are accompanied by nonexpressive elements. But it never addressed whether the First Amendment protects refusals to deal that are forbidden under state anti-discrimination law. At the time, there were no laws in Mississippi prohibiting racial discrimination.
So that question was conclusively resolved much later by the Supreme Court in Rumsfeld v. FAIR, which involved law schools engaged in a boycott of military recruiters to protest the “don’t ask, don’t tell” policy. To the extent that such a boycott involves nonexpressive activity, the court made clear that it is not protected.
The Martin opinion claims that FAIR is inapplicable because the court there did not use the word “boycott.” This is unconvincing given that the plaintiffs in FAIR referred to their own conduct as a “boycott.” The opinion in Martin also argues that because the Georgia statute makes an exception for refusals to deal that are based on business considerations, its prohibition against discrimination is an invalid, content-based restriction upon the freedom of speech. But this reasoning is nonsense. Broadly applied, it would essentially strike down all anti-discrimination laws — including, for example, Title VII of the Civil Rights Act.
Regardless, the court chose to focus on one phrase in the bill’s definition of boycott, which, it reasoned, might apply to expressive conduct: its inclusion of “other actions” that are “intended to limit commercial relations with Israel.”
Georgia has consistently insisted that, like the first two types of activities described, the phrase “other actions” is also limited to nonexpressive commercial conduct. Martin, the plaintiff, is free to express her feelings however she wants, criticizing Israel or even advocating boycotts. But the court decided that the Legislature had not been clear enough in limiting the statute to only nonexpressive activity.
This procedural decision in Martin, although it allows this case to move forward, at least upholds the underlying principle that commercial buying decisions are not inherently expressive and therefore not always protected by the First Amendment. That alone should confirm the constitutionality of anti-BDS laws across the country. And although the court kept this case alive by forcing an ambiguous reading on to a subsection of the law, the statute's provisions are severable. At worst, legislators may have to amend the definition section to make clear what they intended to forbid in the first place.
But Georgia may yet prevail on the merits anyway because the court made crucial errors in failing to dismiss this case. Even taking the facts in a light most favorable to the plaintiff, it should not have ignored the bedrock doctrine of constitutional avoidance, which holds that if there is more than one possible reading, the court should adopt the one that makes the statute constitutional. Moreover, based on other long-standing principles of statutory interpretation, the term “other actions” in the law should have been read to include only conduct similar in kind to the terms that precede it in the law — that is, nonexpressive commercial activities.
In short, reports of the Georgia bill’s death have been greatly exaggerated. Legislatures around the country can rest assured that their anti-BDS bills are constitutional.
Rabbi Dr. Mark Goldfeder, Esq. has served as the founding Editor of the Cambridge University Press Series on Law and Judaism, a Trustee of the Center for Israel Education, and as an adviser to the Permanent Mission of Israel to the United Nations. Read full bio here.