We recently discussed the free speech and associational implications of a Kansas teacher barred from a job due to her church’s support for the boycott, divestment and sanctions (BDS) movement. Now there is a story out of Dickinson, Texas where residents were told that they had to guarantee that they do not support boycotts of Israel as a pre-condition of hurricane relief. Again, this is nothing to do with the merits of the BDS controversy or Israel. The question is the constitutionality of the federal or state government demanding such commitments from citizens to secure employment or relief.
Dickinson is 30 miles southeast of Houston and was hit hard by Hurricane Harvey. Some 7,000 homes and 88 businesses, according to local police reports, have been heavily damaged. Many residents resent being asked to make a commitment on a political question as a condition to their receiving badly needed aid. On the three-page application for grant money, residents found this condition:
Dickinson Mayor Julie Masters admits that people are irate and now says that, when the city’s attorney proposed adding the clause, she thought, “God, this kind of feels like it’s infringing on free speech.” However, she says that she understood that they did not have a choice but to add the clause. This appears due to the Texas state law passed earlier this year that prohibits state agencies from contracting with companies that boycott Israel. It seems obvious that a competent lawyer could adopt an interpretation that would exclude the clause entirely or at least with regard to hurricane relief. The problem is due to the decision to fashion relief recipients as “independent contractors.”
I can understand the state’s interest in how state supplies are purchased in the fulfillment of state contracts. My preference would be to reaffirm that any state supplies or sub-contracts go to the lowest bidders with no discrimination as to potential suppliers on any other basis than price and performance. Period. If someone holds religious or philosophical opposition to any country or group, the public should not have to subsidize such views in paying a high cost for supplies or services. Likewise, the laws should exclude service contractors like teachers as well as recipients for aid. They should make clear that the laws are not meant to exclude people based on their personal religious or political views in their private lives. Instead, some of these laws or clauses are written in the most sweeping language.
The American Civil Liberties Union is challenging these state laws generally as an infringement on First Amendment rights. There are a dozen states with such laws and Congress is now considering a law that would make it a felony for Americans to boycott Israel. Such laws cut deeply into free speech protections. While Texas Gov. Grey Abbott has said that “Anti-Israel policies are anti-Texas policies,” the issue is whether he and the state can demand that citizens adopt their policy views or face disenfranchisement from employment, contracts, and aid. Changing “Don’t Mess With Texas” to “Don’t Mess With Israel” is unlikely to change many minds and is more likely to push many toward the BDS movement.
As should not surprise anyone given my past stated views of free speech, I oppose such laws as current drafted. For those of us concerned over these laws, it is not about being anti-Israel but pro-free speech. We would oppose similar efforts to punish those doing business with Israel or other such laws. Likewise, a state could bar teachers who belong to organizations or churches that support a boycott of the NFL as demanded by President Trump.
As I noted earlier, this controversy raises obvious comparisons to National Association for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886 (1982), where the Supreme Court unanimously ruled (8-0 without the participation of Thurgood Marshall, who would undoubtedly have voted with the majority) for the NAACP against states cracking down on boycotts of white business. The Court ruled that the authority over economic regulations does not curtail political speech in such cases:
Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.
Advocates of such laws are following a dangerous path in seeking to punish those with opposing views. Those in a majority today can find themselves in a minority tomorrow. There are many good-faith reasons to oppose the BDS movement as well as reasons to support it. I do not support the BDS movement but I respect people who hold opposing views. We do not need the government to interject itself and state power into the debate. Punishing those who support the BDS movement will only fuel the anti-Israeli sentiments and undermine the credibility of arguments being made on the merits against such boycotts.
What do you think?