I'm Very Tired and Cranky: S.1/BDS Edition

I didn't want to write this. I really really didn't. I've been swamped the past few days dealing with Rep. Rashida Tlaib telling people who backed an anti-BDS law that "they forgot which country they represent", then explaining why that's an antisemitic dual loyalty trope even when applied to non-Jews like Marco Rubio, then excoriating the AJC for literally making its own dual loyalty accusation against Tlaib as some sort of I-know-you-are-but-what-am-I racist retort to Tlaib's tweet, and finally just throwing up my hands and saying we should probably just avoid tropes of "loyalty" and whatnot in this entire discourse, because none of y'all can be trusted.

And because this is the internet and this involves Jews and antisemitism and Israel and Palestine, I was doing all this while dodging a surrounding milieu of commentary that was as dumb as you could possibly imagine.

In particular: Nobody involved in this controversy seems to have the foggiest understanding of what Senator Rubio's bill (designated "S.1") is even doing. When they're not engaged in outlandish hyperbole about it "banning criticism of Israel", they're outright mistaking it for completely different bills about BDS. And to the extent their arguments do touch on something that is within striking distance of an actual public controversy, they're almost universally awful.

That's right: this is a rant post. Feel free to skip it. I'm venting.

Longtime observers of "anti-BDS" laws may recognize that there are two very different "versions" of these laws which have been the subject of legal controversy recently. One is the federal "Israel Anti-Boycott Act", or IABA. This would (for the most part) update the Export Administration Act's preexisting ban on boycotting Israel as part of an effort to comply with a boycott demand by a foreign country to also include international governmental organizations (i.e., the EU and UN). I wrote critically about that proposed law here. Notably, neither the current law nor the IABA would prohibit, penalize, or restrict individuals or companies from boycotting Israel based on their own conscientious ideological choice -- it only covers boycotts which are done at the behest of a foreign power.

The second are state-level laws which generally prohibit the state from investing in or contracting with entities which, themselves, boycott Israel. Such laws include the recently struck down Kansas and Arizona laws, as well as the Texas law that was recently challenged by a speech pathologist who could not (she maintains) renew her contract with a local school district because she boycotts Israel. These laws do target "conscientious" boycott decisions -- not by prohibiting the choice, but by declaring that the government won't contract with bodies that make that choice. I've written critically about these laws here and here.

So which of these categories does Senator Rubio's S.1 fall into? Neither. His bill -- or rather, Title IV of his bill (the other three titles cover defense authorizations for Israel and Jordan, and tightened sanctions on Syria) -- does one thing: it states that state anti-BDS laws (of the second-type, above) are not preempted by federal law.

If that sounds technical, it is. Rubio's law doesn't itself impose any penalty or restriction on persons engaging in BDS. All it says is that if a state passes a law limiting its own investment or contracting to entities which disavow BDS, such a law wouldn't be deemed to conflict with any federal statute (preemption hasn't been a major feature of debates over BDS bills, but presumably Rubio is worried about Crosby v. National Foreign Trade Council). If no states pass these laws, then Rubio's bill does nothing. If a state does pass a law, Rubio's bill still doesn't shield the state from having to defend its enactment against a First Amendment challenge. The state laws which Rubio's bill would declare non-preempted either are constitutional or they're not, but that question is utterly non-germane to Rubio's bill. And likewise, the validity of these state laws is entirely separate from the IABA and whether it is a wise or permissible alteration to the existing anti-boycott framework of the Export Administration Act -- Rubio's bill doesn't even touch on that subject.

But if we do move to the subject of the state laws and their constitutionality -- boy, are we ever getting a blast of Twitter School of Law. On the anti-side: There's the basic version that says these laws "allow punishment for Americans who protest Israel", which, no they don't -- they just hold that the state won't invest or contract with you if you boycott Israel. Why is it the case that every single intervention in these debates that at all requires any adjustment in how one registers one's objections to Israeli policy is perceived as tantamount to banning discussion outright? Don't answer that -- I know exactly why.

Then you get the more advanced play that the state can't claim its own ideological right to "boycott the boycotters" because "the Constitution is designed to protect American citizens from the government, and not the other way around", which sounds great until you think about it for a quarter-second and realize how strange it would be to apply to the government in its capacity as an employer and contractor, where it repeatedly and necessarily will be making non-viewpoint neutral choices on a daily basis. First Amendment law has recognized this since at least Pickering v. Board of Education:

[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

This doesn't mean that the state can impose any condition it wants on the speech of its employees -- if the phrase "arrive a balance" wasn't a dead giveaway, the sentence immediately prior to that passage in Pickering--"[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected"--is clear enough. But there is a balancing test, and it should be obvious that there are absolutely scenarios where the government can and should limit its contracting decisions (ex: the state can't ban racist speech, but it absolutely can fire a police officer who engages in racist speech, because the state has a strong interest as an employer to not let its employees talk that way).

Moving to the "pro" side, first you have to hack through article after article talking about the IABA and how it is only a minor update to the EAA and har-de-har don't Sanders and Tlaib realize we've had a law like this for years -- you're talking about a different bill!

Then you get the folks who say "well, these are just anti-discrimination laws" and ask what your position was on Masterpiece Cakeshop. The problem with that argument (other than the obvious "wait -- what was Rubio's position on Masterpiece Cakeshop?") is that these laws -- despite my advice -- are not being written as anti-discrimination laws. Indeed, Rubio's bill -- which only applies to boycotts which are taken "for purposes of coercing political action by, or imposing policy positions on, the Government of Israel" -- wouldn't even apply to a straightforward discrimination case where someone who refused to transact with an Israeli national simply because "I hate Israelis." If these are anti-discrimination provisions, then just write them that way: "we won't contract with any party which refuses to stipulate that they don't discriminate on basis of [inter alia] national origin." They're not written that way in part because these laws are, by design, meant to encompass activity that is not in of itself discriminatory (ex: the genuinely "nonpartisan" boycotter who refuses to do business with any party that she deems violates human rights -- Israel included as one of many).

Those who cite Rumsfeld v. FAIR (upholding a federal law requiring universities which accept federal money to allow military recruiters equal access to campus facilities) are at least in the right ballpark -- it is an "unconstitutional conditions" case -- but it hardly disposes of the controversy here. FAIR relied heavily on the notion that the decision to exclude recruiters from campus is not itself inherently "expressive" (I'd also note that the government's interest in insuring its own agents have access to a facility they are, in part, funding seems especially strong and isn't present in the anti-BDS law cases). But a boycott is much more inherently expressive, and since -- unlike the law in FAIR (and again, against my recommendations) -- the state laws are explicit that they are quite purposefully targeting the expressive aspects of the boycott, not the conduct per se (again: Rubio's bill doesn't even cover a generic refusal to do business with Israelis) -- it sits on far less stable footing.

All of which is to say: the law here is not fully settled and is complex, and we could stand for a much more careful conversation about how government speech versus individual liberty versus non-discrimination intersect in cases like these. But we're not having it, and nobody wants to have it.

And I'm just really tired, all of the sudden.