Tuesday, June 11, 2019

Arkansas Anti-BDS Law Exposes Rifts in the First Amendment -- and Anti-Discrimination -- World

Arkansas is one of several states to have passed laws restricting state contractors from engaging in BDS (its law is, I think, unique in that it doesn't prohibit such contracts outright, but instead requires that the contractor give the state government a substantial discount). It is unique in that it is, to my knowledge, the only state that has so far prevailed in litigation -- a decision that now goes up to my old court, the United States Court of Appeals for the Eighth Circuit.

Aside from its juicy public salience, the case is interesting for how much it has divided First Amendment scholars -- and not along "typical" lines. The Knight Institute for First Amendment Law at Columbia filed an amicus brief urging that the Arkansas law is unconstitutional, signed by some major First Amendment luminaries. These include Katherine Franke -- a prominent BDS supporter -- but also Geoff Stone, who was keynote speaker at the annual conference of the anti-BDS Academic Engagement Network a few years back, as well as UC-Berkeley Law Dean Erwin Chemerinsky, another high-profile boycott opponent.

Meanwhile, another smaller group of First Amendment scholars filed their own brief defending the constitutionality of the law. While it's only signed by three people, they're quite serious names in their own right: Eugene Volokh (UCLA), Andrew Koppelman (Northwestern), and Michael Dorf (Cornell). Volokh is a libertarian-conservative, but Koppelman and Dorf are high-profile liberals -- and Koppelman in particular is a major figure in anti-discrimination law.

And the threat to anti-discrimination and public accommodations law is the major theme of their brief (in this, it is actually Volokh's sign-on to the brief that is most intriguing, as he has long been concerned that anti-discrimination laws intrude on First Amendment-protected speech). Dorf wrote an explanatory post that he opposes laws like Arkansas as policy, but crafting a doctrine that renders them susceptible to First Amendment challenge but doesn't open a wide door to challenging a raft of anti-discrimination law is hard -- and harder still with a Supreme Court that seems very thirsty in the latter regard. Says Dorf:
I agree that there is no compelling interest justifying the Arkansas law or others like it. Indeed, I think such laws are unwarranted. I oppose them on policy grounds. I also agree that there is a compelling interest in public accommodations laws. However, one must think strategically about such issues. The question is not what some liberal law professors regard as a compelling interest but what a majority of the Supreme Court will ultimately regard as compelling. I have no confidence that the Court would find a compelling interest in forbidding discrimination on the basis of LGBT status.
This dovetails with a more general worry about the Lochnerization of the First Amendment -- something I've written about as well -- which ought give pause about expanding the sorts of expressive-refusals which qualify for First Amendment protection. The more we're willing to code conduct as speech because it's done for expressive purposes -- well, can refuse to care for a trans patient for expressive reasons; one can refuse to enroll in Obamacare for expressive reasons; one can refuse to offer contraceptive coverage to one's employees for expressive reasons; one can refuse to transport a Muslim or Jew or Christian in your taxi for expressive reasons ... it goes on. Some of these we already are seeing, and seeing ratified by the conservative judiciary. If that's a trend that alarms you, one might hesitate about creating new doctrine that appears to accelerate it.

This is a risk I think that the anti-anti-BDS campaign simply has not paid sufficient attention to, in part because it bristles at the suggestion that it is defending a form of "discrimination". But the fact that it's been generally overlooked is precisely why it's so important that it be expressly grappled with as the doctrine starts to settle. There are, after all, elements of BDS campaigns which in my view represent quite straightforward cases of national origin discrimination, and to the extent that people are starting to reflexively cry "First Amendment" because the discrimination is expressively-motivated, that's a big problem.

To be sure, I'm not fully convinced by the Volokh/Koppelman/Dorf argument (and there's a serious problem with the "dueling hypocrisy" issue surrounding Masterpiece Cakeshop). There clearly seems to be something different about applying an "anti-boycott" law to a consumer buyer versus demanding a business be neutral in who it sells to (much less hires). How does one even police a consumer boycott (people don't buy Sodastreams every day!)? Perhaps the issue is that the laws targeting a consumer boycott takes otherwise clearly lawful conduct (not buying a Sodastream) and subjects it to civil sanctions solely based on the surrounding expression (I'm not buying a Sodastream because I'm anti-Israel, versus because I don't like carbonated beverages).

Yet as I've previously observed, this actually isn't that far off what discrimination law does on a daily basis: it's legal fire someone, but not legal to fire someone if one's doing it to "express the message" that "I hate Latinos". The latter, too converts conduct from licit to illicit based on something that very easily could be described as "expressive". This is why I find this issue to be genuinely nettlesome.

Of course, Dorf himself notes there might be a valid First Amendment claim against these laws "if the record contained evidence of censorial motivation on the part of the [state] legislature," namely, if the law was passed "for the purpose of suppressing the message sent by boycotts of Israel rather than because of what they regarded as the economic impact of boycotts of Israel." I think the evidence of such an expression-based motive is pretty strong in many of these cases (note how easily it could be avoided if legislators took my advice in crafting these bills!). So perhaps that's our out.

But the crux of the issue, for me, is that however this gets resolved, the resolution better take an eyes-wide-open approach to how the new doctrinal rules interrelate with anti-discrimination law, especially in the context of the ascendant conservative judiciary. So I am very glad that we are seeing someone raise the issue of how the anti-anti-BDS argument might threaten anti-discrimination law.

There are very good reasons why we intuitively think of boycotting as an expressive act that should be protected. There are also very good reasons why "boycott = expressive" runs the risk of taking a torch through important areas of anti-discrimination and public accommodations law. It is hence very important -- especially if we end up taking the boycott-protective position -- that we do so in a way that is careful and conscientious of the discrimination issue.

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