Last week, the Senate passed a bill protecting state laws that prevent governments from contracting with corporations that boycott Israel. The bill has yet to pass in the House, but its opponents—including the American Civil Liberties Union (ACLU)—have described both it and the laws it upholds as an assault on freedom of speech, among other things. These attacks, writes David Bernstein, are based on sometimes deliberate misunderstandings of both constitutional law and what such bills do. Noting that he has “perhaps never seen as much misinformation and bad legal analysis regarding a given issue,” he refutes some common myths about these “anti-BDS” laws,:
Anti-BDS laws [after the movement to boycott, sanction, and divest from Israel] do not require anyone to “pledge loyalty to the state of Israel.” . . . This is a lie (not the first one) that originates with [the pro-Kremlin, anti-Israel polemicist] Glenn Greenwald, who claimed, in a headline no less, that a Texas anti-BDS law required a contractor to sign a “pro-Israel oath.” Contractors must simply certify that they are not participating in anti-Israel boycotts. They not only don’t have to take a pro-Israel oath but are free to criticize Israel as much as they like, donate to anti-Israel campaigns or candidates, and so on. Anti-BDS laws do not prohibit individuals in their private capacity from boycotting Israel, even if their company has business with a state that has an anti-BDS law. . . .
[Furthermore, the] pending federal legislation only makes the federal government neutral on state anti-BDS laws. . . . In fact, the Senate bill is a response to the possibility that courts will hold state anti-BDS laws as implicitly preempted by federal policy. By explicitly stating that the federal government does not wish to preempt such state laws, the danger of implied preemption goes away. But the bill doesn’t impose any restrictions on anybody, so it can’t threaten anyone’s free-speech rights. If there were a threat to free speech, it would come from state laws. However, boycotts are, according to the Supreme Court, economic action, not speech protected by the First Amendment. . . .
Many opponents suggest that states have no interest in foreign policy or what foreign governments do, so anti-BDS laws are an unprecedented gambit for state governments, explicable only by the nefarious power of the “Israel lobby.” False. During the 1980s, many states passed laws banning state contractors from dealings with South Africa. No one at the time suggested that contractors had a First Amendment right to deal with South Africa, even if they wanted to do so for ideological reasons.
[Moreover], federal law has banned U.S. entities from participating in or complying with the Arab League boycott of Israel since the late 1970s. . . . This law has been around for 40-plus years and has never been subject to a successful First Amendment challenge. This should give you some idea of how legally far-fetched the challenges to state anti-BDS laws are.
Read more on Reason: https://reason.com/volokh/2019/02/18/everything-you-wanted-to-know-about-anti