PoliticsProf. Michael Dorf (Cornell), Andrew Koppelman (Northwestern), and Me...

Prof. Michael Dorf (Cornell), Andrew Koppelman (Northwestern), and Me on Texas Anti-BDS Law

We just filed this amicus brief in A&R Engineering and Testing, Inc. v. Paxton, which is much like the briefs we filed in a couple of previous cases (Arkansas Times LP v. Waldrip and Amawi v. Pflugerville Independent School District). Here’s the Summary of Argument and the Conclusion:

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. FAIR, 547 U.S. 47 (2006), and it is the foundation of the wide range of antidiscrimination laws, public accommodation laws, and common carrier laws throughout the nation.

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 like-minded 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.
  • An employer that is required to hire employees regardless of union membership has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
  • A cab driver who is required to serve all passengers has no First Amendment right to refuse to take people who are visibly carrying Israeli merchandise.

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. For this reason, this Court should interpret “otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations,” Tex. Gov. Code § 808.001(1), as covering only commercial conduct such as that listed in the preceding phrases (“refusing to deal with” and “terminating business activities with”), and not extending to advocacy.

But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment.

And though people might have the First Amendment right to discriminate (or boycott) in some unusual circumstances—for instance when they refuse to participate in distributing or creating speech they disapprove of—that is a basis for a narrow as-applied challenge, not a facial one. For this reason, Tex. Gov. Code § 2271 is constitutional, as are contracts based on that provision….

Banning discrimination against Israel and Israeli companies—whether in general, or just for government contractors—is a controversial policy. Perhaps it is unwise, especially when applied to small service providers. Perhaps people should be generally free to choose whom they will do business with, unless such choice risks creating a truly pressing social problem.

But such decisions are a matter for the political process, not for courts. So long as a law leaves people free to say what they want, it may generally restrict people’s decisions about whom to do business with—which are generally regulable conduct, not constitutionally protected speech.

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