There is a fascinating free speech case developing in Alabama where Gov. Robert Bentley approved a law banning firms that boycott Israel from doing business with Alabama state and local governments. It is a measure pushed hard by pro-Israel activists and is likely to replicated around the country. However, SB81, sponsored by Republican Sen. Arthur Orr, raises core free speech and associational rights. What is ironic is that it is a Republican measure that would seem to deny the type of free speech rights recognized in corporations in cases like Citizens United. If corporations have free speech rights like citizens, could a state bar anyone who was opposed to Israel from state employment or contracts? A court challenge would raise some very difficult and frankly close questions on the right of states to make such a distinction.
The law bars any public entity in the state from entering into a contract with firm participating in the Boycott, Divestment and Sanctions movement, or BDS. We have been discussing crackdowns on BDS advocates in Europe and other places. Despite such pressures, universities, international organizations, and unions have been joining the BDS movement.
Pro-Israel group insist that the BDS unfairly targets Israel, ignores Palestinian violence, and constitutes anti-Semitism. Josh Block of the Israel Project celebrated the passage of the Alabama law and insisted that “at its core, the effort to single out Israel is anti-Semitism, plain and simple.”
Alabama joins eight other states which have formally cut ties with BDS participants. Those states are Florida, Arizona, Colorado, Georgia, Illinois, Indiana, South Carolina and Iowa.
As many know on this blog, I tend to follow a bright-line rule approach to free speech. I think it is a dangerous thing for governments to regulate or penalize exercises of free speech. Whatever the merits of the BDS controversy, it is clearly a matter of free speech and differing political and social viewpoints. Yet, as discussed below, there are some compelling arguments that can be made on both sides.
The question is whether a company will challenge the law. It could create an important test of free speech for corporations. Ironically, these are largely GOP states that are curtailing the notion that corporations have a free speech protection on such questions. Notably, this is punishing a company for a view that is held outside of the state contract. Yet, in favor of the state, it could be argued that a state contractor who adheres to the BDS would be using state funds in a discriminatory fashion since the company would not be using Israeli materials or subcontractors or suppliers. Thus, Alabama would be indirectly engaging in the exclusion of Israeli businesses. Virtually any contractor would have to buy materials or other items from the open market to support a state contract. Thus, Alabama could argue that there is no difference between this and the ban on doing business with South Africa under apartheid, even though BDS advocates use the same analogy to support the ban. Alabama could say that, if the state has a right to identify and bar businesses with discriminatory practices, it can do so even when there is disagreement as to which side is discriminatory or abusive. Thus, BDS advocates say Israel is the discriminatory and abusive party while Israel supporters insist that the ban itself is anti-Semitism. Can a state resolve that question in favor of one side and use its inherent powers to ban state money from direct or indirect support of a discriminatory practice?
Orr is an interesting politicians with a truly impressive and commendable background with work as a Peace Corp volunteer and a stint with Habitat for Humanity.
The best challenge would of course come from a contractor that does not rely on purchase of outside materials or services. Labor and service contracts are the most obvious. However, even a law firm or a medical staff must by office supplies and the like. The state could argue that it wants all contractors to use the available goods from the full market to reduce costs and to avoid discrimination.
What do you think?