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

This amicus brief was just filed in A&R Engineering and Testing, Inc. v. PaxtonThis is a lot like the briefs that we filed in some of our previous cases. (Arkansas Times LP v. WaldripAnd Amawi v. Pflugerville Independent School District). The Summary of Arguments and Conclusion are here:

First Amendment protection does not apply to decisions not buying or selling goods and services. It is the essential implication. Rumsfeld v. FAIR5,47 U.S. 47 (2006). It forms the base of many antidiscrimination and public accommodation laws as well as common carrier laws across the nation.

For example:

  • Even if the limousine driver describes it as part of a national boycott or boycott of similar-sex marriages, he does not have a First Amendment right to refuse service to a gay wedding party.
  • Even if a shop describes it as boycotting Catholics who support the Catholic Church, it is not protected by the First Amendment.
  • Employers in jurisdictions that prohibit discrimination based on political affiliation do not have the First Amendment right of refusing to hire Democrats.
  • A union member is not a prerequisite for an employer to hire workers. An employer is not allowed to reject union members because of First Amendment rights.
  • The First Amendment does not allow a cab driver to refuse service to anyone who is carrying Israeli merchandise.

All of these individuals would be free to criticize same-sex marriages, Catholicism and the Democratic Party as well as unions and Israel. This would constitute speech and is protected under the First Amendment. Accordingly, the Court will interpret “otherwise” as meaning, “otherwise taking action that is designed to penalize, inflict or limit economic 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.

As a rule, however, the First Amendment does not protect a person’s decision to not do business with another party, regardless of whether it is motivated by politics (and even if it is part a larger political movement).

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. 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. It is possible that it would be unwise to apply this policy, particularly when small service providers are concerned. People should have the freedom to decide with whom they do business, except when it creates a serious social problem.

These decisions should be made by the political process and not by 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.