How the Conflict Between Anti-Boycott Legislation and the Expressive Rights of Business Endangers Civil Rights and Anti-Discrimination Laws

Abstract

This article addresses the conflict between the expressive rights of businesses and enforcement of civil rights laws in the context of the many state laws that prohibit the awarding of public contracts to companies that engage in a boycott of Israel. Such laws (known as anti-BDS laws) have been challenged in the Federal courts in recent years, with the support of civil rights organizations, on the grounds that they violate the First Amendment right to boycott. This article examines the impact that these challenges could have on anti-discrimination laws, such as the Civil Rights Act of 1964. It argues that there is no meaningful distinction between these anti-boycott laws, and other anti-discrimination laws, since a boycott, like discrimination, is simply a refusal to deal with someone. We outline the Supreme Court’s increasing willingness in recent years to favor the religious and expressive rights of organizations and businesses over the enforcement of civil rights laws and conclude that challenges to anti-BDS laws, viewed within this trend, could threaten the validity of traditional anti-discrimination laws. By prioritizing the expressive rights of businesses, opposition to anti-BDS laws could threaten important anti-discrimination norms.