A Texas speech pathologist has recently filed suit on First Amendment grounds because a public school that hired her as a contractor asked her to sign a statement mandated by the state’s law against boycotts of Israel. When the incident was first reported in the viciously anti-Israel Intercept, a headline described the statement as a “pro-Israel oath.” Not only is that false, many of the details given in the article itself—which have since been repeated in many media outlets that picked up the story—are misleading or incorrect. David E. Bernstein sets the record straight and explains why the law does not violate freedom of speech:
Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just as local governments require contractors to certify that they adhere to many other state laws—such as anti-discrimination laws and financial propriety laws—they also must certify . . . that their business does not boycott Israel. . . .
Note that, consistent with the language and obvious intent of the law, the school district certification applies to the business [of which the speech pathologist is the sole proprietor]. Contrary to what I’ve been reading all over the Internet, she is not being asked to pledge that she, in a personal capacity, will not privately boycott Israel, much less that she will, e.g., not advocate for boycotting Israel or otherwise refrain from criticizing the country.
[Regarding] the First Amendment issue, [this law is] no different from requiring a contractor to pledge that his business does not refuse to hire Muslims, or Jews, blacks, veterans, or another state-designated group. The sole-proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can’t engage in action that the state disapproves of. . . .
As a libertarian, I’m sympathetic that there generally should be a right to boycott, even in the context of government contracting. What I am not sympathetic to, however, is the notion that we should expand antidiscrimination laws and contract constitutional restraints on such laws until, and only until, someone figures out that they could apply these laws to causes and institutions the left doesn’t like, such as the military or Israel, at which time we suddenly invent a broad First Amendment right to boycott. That, in essence, is the position the ACLU has taken for the past twenty years or so, and at best it’s wildly optimistic about how politics actually works, and at worst it’s . . . intellectually dishonest.
Read more on Volokh Conspiracy: http://reason.com/volokh/2018/12/18/everyone-is-misreporting-the-texas-bds-l