In a ruling issued last week, the Texas federal judge Robert Pitman declared a law forbidding the state to contract with businesses that boycott Israel in violation of the First Amendment. David Bernstein, calling the judge’s opinion “a mess,” exposes some of the key flaws in its legal reasoning:
First, the opinion misstates the holding of [the 1982 Supreme Court case] NAACP v. Claiborne Hardware as “recognizing that the First Amendment protects political boycott.” [But] the case actually holds that there is a First Amendment right to advocate economic boycotts, not to engage in them. If there were a First Amendment right to boycott for political reasons, then anyone politically opposed to racial integration, gay rights, and so on would have a First Amendment right to “boycott” minority groups protected by civil-rights laws. That’s in fact the implication of Judge Pitman’s opinion, and it’s hard to believe he means it. It’s even harder to believe the Supreme Court would endorse his opinion given this implication.
Second, [in the 2005 case of] Rumsfeld v. Forum for Academic and Institutional Rights, the Supreme Court held that law schools had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters. Pitman’s attempt to [show that this ruling does not apply to the case at hand] comes down to the fact that the Court never used the word boycott in its opinion. . . .
[But] what the law-school plaintiffs were doing was clearly within the definition of the word boycott; and the plaintiffs, in their own Supreme Court brief, themselves described what they were doing as a boycott.
Read more on Volokh Conspiracy: https://reason.com/2019/05/01/does-judge-robert-pitmans-opinion-invalidating-texass-anti-bds-law-stand-up-to-scrutiny/