For the ACLU, Antipathy to Israel Trumps Antidiscrimination

Laws against boycotting the Jewish state are patterned after those that protect gays and lesbians.

By Eugene Kontorovich, WSJ

The ACLU’s latest target is the Combatting BDS Act, which passed the Senate last week 77-23. The bill is quite modest compared with the anti-BDS measures enacted in 26 states in recent years, which the ACLU is also challenging. Those laws prohibit state contracts with, and investment in, companies that boycott Israel-connected firms. The federal Combating BDS Act would simply declare that the state laws don’t violate U.S. foreign policy.

Despite the bipartisan support the bill enjoyed in the Senate and overwhelming approval of the underlying state legislation, it faces a difficult road in the House, where radical Democrats are united against it.

The ACLU is providing political cover to Democrats who oppose the laws by claiming they raise constitutional problems. It has brought lawsuits in three states, arguing that the First Amendment protects firms’ right to boycott certain clients. In the litigation, the ACLU claims that “the state cannot condition government contracts” on a company’s refusals to do business with private parties for “political” motives. The Council on American-Islamic Relations has also brought two such lawsuits.

Yet state anti-BDS laws do not infringe on speech. They don’t regulate speech at all. That’s exactly what the ACLU has said when states passed similar antiboycott laws that weren’t about Israel.

The First Amendment protects speech, not conduct. In the 2006 case Rumsfeld v. FAIR, the Supreme Court held unanimously that the government can deny federal funding to universities that boycott military recruiters. Even though that boycott was based on political motives, that did not make it protected speech.

Similarly, the act of boycotting Israelis does not in itself express any particular political viewpoint. Companies may boycott Israel to curry favor with Arab states or out of mere anti-Semitism. They may hope to avoid harassment from the BDS movement or simply cave in to pressure from Palestinian groups.

Airbnb, the most prominent U.S. company to announce an Israel-related boycott, says its decision was entirely apolitical and that it opposes boycotts of Israel. A boycott or divestment doesn’t constitute a message in itself, meaning refusing to do business isn’t speech. That’s what a federal court held last month when it threw out an ACLU challenge to Arkansas’s anti-BDS law.

The ACLU has long argued that although private parties have the right to refuse to do business with people for ideological reasons, the government need not fund such conduct. “Taxpayer dollars must not fund discrimination” carried out by private parties, the ACLU states in its issue brief on government-funded discrimination. It has successfully pushed measures banning the federal government from contracting with companies that engage in certain boycotts. And it “strongly” supported legislation that would bar federal funds from being used by states in contracts with companies that engage in boycotts.

Identity politics is the key to understanding the ACLU’s apparent change of heart. The antiboycott laws the ACLU has defended are meant to protect gays and lesbians, an identity group they favor. The ACLU acknowledges that in many states it is “legal to fire or refuse to hire someone based on their sexual orientation,” but argues that companies that do so “must not be allowed to do so with taxpayer dollars.” It inexplicably ignores that the logic of those antiboycott laws applies equally to Israel.

The ACLU may think that refusing to do business with people because of their sexuality is immoral while refusing to do business with people connected with Israel is a blow for justice. That’s an intelligible political position, but it’s lousy First Amendment jurisprudence. First Amendment protections are the same regardless of what one thinks of the underlying conduct.

I played a role in developing the state anti-BDS laws, submitting testimony to legislatures and advising private groups that supported the measures. To avoid any constitutional doubts, I stuck to the model of antiboycott laws that the ACLU supports, comfortable in the knowledge that their constitutionality was unquestioned. I underestimated how much changes when sexual identity is replaced with Israeli identity.

There is more at stake here than hypocrisy. The ACLU’s enthusiasm for Israel boycotts has led it to take legal positions that threaten to undermine the antidiscrimination norms it has worked for decades to achieve. Now it is prepared to risk legal protections for sexual minorities for the sake of creating a constitutional right to boycott Jews. The ACLU probably hopes to have it both ways, arguing that boycotts of Israelis are “political” and boycotts of gays and lesbians are just mean. But courts won’t maintain one standard for boycotts of progressives’ favored targets and another standard for everyone else.

Mr. Kontorovich is a professor at George Mason University’s Antonin Scalia School of Law and a director at the Kohelet Policy Forum in Jerusalem.