Last week, New Hampshire became the 37th state to prohibit government contractors from boycotting the Jewish state. Opponents of such laws have labeled them an assault on freedom of speech, and in some cases have invidiously described them as requiring individuals and businesses to “sign a pro-Israel oath.” Eugene Volokh, a libertarian legal scholar, investigates the constitutionality of anti-boycott laws—and determines that they do not raise any First Amendment concerns:
Decisions not to buy or sell goods or services are generally not protected by the First Amendment. . . . Thus, for instance:
- A limousine driver has no First Amendment right to refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by likeminded citizens).
- A store has no First Amendment right to refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
- An employer in a jurisdiction that bans political-affiliation discrimination has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
Of course, all these people would have every right to speak out against same-sex weddings, Catholicism, the Democratic party, unions, and Israel. That would be speech, which is indeed protected by the First Amendment.
This lack of constitutional protection [for boycotts] simply reflects a well-established principle: the First Amendment does not generally protect liberty of contract, whether or not one’s choices about whom to deal with are political.
Read more on Reason: https://reason.com/volokh/2023/06/25/the-first-amendment-and-refusals-to-deal/