Tuesday, December 18, 2018

Three Ways of "Banning" BDS Contractors

I've been a skeptic of state anti-BDS laws. The short version of my view is that (a) such laws, if they are to pass First Amendment muster, must be drafted and implemented very carefully, and (b) such laws will almost certainly neither be drafted nor implemented very carefully, resulting in (c) the regular, expected, and consistent flow of cases which will at the very least be PR disasters.

The latest case comes from Texas, where a speech pathologist lost her job for refusing to sign a stipulation that she does not and would not boycott Israel for the duration of the contract. Texas law requires that state contractors -- including sole proprietorshops -- refrain from boycotting Israel in order to be eligible for state contracts. This requirement was quickly cast on the internet as a "pro-Israel oath" and then an "oath of loyalty", because this is the internet and we can't talk about Jewish things without exaggerating in the most antisemitic way possible.

The sole proprietorship case is obviously the most troublesome, since it seems to prevent individuals-as-individuals from exercising their conscientious right to boycott insofar as they also transact with the state.

But on that score, it struck me that there are two different sorts of ways these laws could be written, with very different constitutional and free speech implications:
1. They could prohibit contracting with entities who boycott Israel "on their own time"; or 
2. They could prohibit contracting with entities who boycott Israel in the course of fulfilling the contract.
The first type of law covers contractors who, just on a day-to-day basis, refuse to buy Israeli products for some presumably ideological (non-business related) reason. The Texas woman, for example, says that she out of personal ideological conviction refuses to buy Israeli products as part of Palestinian solidarity (she is an American citizen of Palestinian descent). That certainly seems to raise very real free speech hackles. It is designed to punish someone for engaging in conduct unrelated to their job because one dislikes the ideological message behind that conduct.

The second type of law only covers and proscribes boycotting Israel in the course of fulfilling the contract. So it would be indifferent to what the Texas woman does or doesn't purchase on her own time, but would tell her that she couldn't -- say -- refuse on ideological grounds to use an Israeli software program that was the best fit for her occupational needs, or decline to serve an Israeli student while serving as a school pathologist. That seems much closer to run-of-the-mill state regulation of its employees' on-the-job conduct, and is much more permissible. The state has a valid interest in ensuring that its contractors-qua-contractors refrain from discrimination and accomplish their tasks in the most efficient manner possible.

There's also a third permutation which David Bernstein alerted me to, which is particularly germane in the sole proprietorship case:
3. The laws could prohibit contracting with entities who boycott Israel in their capacity as a contractor.
The difference between a Type 2 and Type 3 law is that in the former the contractor would be free to boycott Israel in all respects save matters related to the contract; whereas in the latter the contractor would have to refrain from boycotting Israel even in its operations that had nothing to do with the state contract.

The difference between a Type 1 and Type 3 law is a distinction between what our speech pathologist does as a private citizen and what she does as a business. This is one of those seemingly fictitious distinctions that is nonetheless exceedingly important in business law: "you" are not the same as "the business which happens to be solely comprised of 'you'". So: does her speech pathology business boycott Israel (again, return to the "would she work with an Israeli exchange student" question), or is her boycotting something she does as a private actor? Is she not buying Ahava cosmetics for her bathroom, or is she not purchasing Israeli software for her practice? These distinctions are arguably relevant.

Or arguably not: one might say that she has the right to run her "company", as much as her private life, in line with her ideological scruples, and so either way there is a threat to free expression. The circumstances where a company can independently claim to possess ideological, moral, or religious interests is controversial (remember Hobby Lobby?), and I don't want to wade into the morass now.

For me, I think that Type 2 laws might be justifiable (though I'd prefer they simply be worded as general non-discrimination provisions than anything Israel specific). Type 1 laws definitely stretch too far, and Type 3 laws probably do too, at least as applied to solo operations.

But then we return back to the thesis of my article: these laws will almost always be written loosely and interpreted poorly, and those facts will inevitably swamp even any valid gains that they may secure. Better to just have general anti-discrimination laws, and make it clear they'll be enforced.

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