Last week, the Senate passed a bill sponsored by Senator Marco Rubio (R-Fla.) that would permit state and local governments to deny contracts to corporations and government entities (such as public universities) that use their financial muscle to voice opposition to the government of Israel through boycott, divestment, or economic sanctions—“BDS” for short. It’s no surprise that Senator Rubio’s bill—known as the Combating BDS Act of 2019—has drawn criticism from the ACLU and other groups that oppose government impingement on freedom of speech.
Senator Rubio responded to this criticism in a New York Times op-ed, arguing that his legislation does not violate the First Amendment due to a combination of two reasons. First, the bill applies to “entities,” not individuals or associations of people. Second, it targets anti‑Israel “conduct,” not speech. But those arguments are hard to square with the Supreme Court’s First Amendment jurisprudence, indeed, the same case law that Senator Rubio has otherwise championed.
The best that can be said for the legal prospects of Senator Rubio’s bill is that it is unlikely to be challenged because it’s a dud. The bill would not withhold federal dollars from businesses or other entities that try to exert economic pressure on Israel. Instead, it merely clarifies that federal law does not prohibit state or local governments from denying funding to entities engaged in such activities. But nobody has been waiting for that clarification from Congress. More than half of the states have already enacted anti-BDS legislation.
Even though Senator Rubio’s bill has little bite, the legal arguments that he made in support of it in his op-ed are alarming. The First Amendment protects corporations when they engage in political speech to the same degree that it protects individuals in these kinds of cases. Imagine if Congress were to enact a law that denied federal loans to students who participate in boycotts of Israel. Such a law would be unconstitutional because it would penalize students for exercising their First Amendment rights. The same principles apply to government attempts to discourage disfavored political activism by corporations when awarding contracts.
We know this because of Citizens United v. FEC, which is popularly—and too simplistically—remembered for the proposition that “corporations are people.” In truth, corporate personhood has much deeper roots in our nation’s legal history. Indeed, one of the most famous First Amendment cases, New York Times Co. v. Sullivan, involved a newspaper advertisement, a form of corporate speech. Citizens United was nonetheless significant because it firmly and controversially established that corporations enjoy rights identical to those enjoyed by individuals when it comes to engaging in political speech. Considering a law banning corporate spending on campaign advertisements in the days immediately before federal elections and primaries, the Supreme Court rejected the argument that “political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”
Senator Rubio’s second argument in support of his bill—that it regulates conduct, not speech—fares no better. As the famous flag-burning case Texas v. Johnson demonstrates, conduct is generally protected by the First Amendment as long as it is “expressive.” And the Supreme Court has held that economic boycotts are a form of expressive conduct. In NAACP v. Claiborne Hardware Co., the Court overturned a state-court decision that held activists liable for economic losses that white-owned businesses suffered as a result of a civil rights boycott. The Court held that “[e]ach … element of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments.”
But Senator Rubio argues that another, more recent Supreme Court case puts his bill on the right side of the law. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), the Court upheld a law called the Solomon Amendment that withholds federal funds to colleges and universities that prohibit military recruiters from coming on campus. The Court held that a university’s denial of access to military recruiters is not expressive because an observer would have no way of knowing the reason for recruiters’ absence on campus. Only through speech that explains the university’s position, explained the Court, does the conduct become expressive.
Senator Rubio, however, cannot take refuge in that decision. Anti-BDS laws differ from the Solomon Amendment because they facially retaliate against political opposition to the actions of Israel’s government. The Solomon Amendment did not identify particular reasons that educational institutions might choose to bar military recruiters from campus—such as opposition to the military’s treatment of transgender service members—as a trigger for withholding federal dollars. The Combating BDS Act, by contrast, specifically targets entities that “knowingly” exert economic pressure “for purposes of coercing political action by, or imposing policy positions on, the Government of Israel.” In other words, the bill and the laws that motivate it single out entities for unfavorable treatment specifically because their activity involves the expression of political views concerning Israel’s government.
One does not have to agree with the BDS movement’s political goals to recognize the constitutional threat posed by Senator Rubio’s legislation. How would BDS opponents react, for example, if state governments withheld contracts from firms that express favorable views of Israel’s government? Indeed, the Anti-Defamation League, which strongly opposes BDS as a tactic, acknowledged in a leaked internal memo that anti-BDS laws are “ineffective, unworkable, [and] unconstitutional.” Federal courts in Kansas and Arizona have agreed, entering preliminary injunctions against state anti-BDS laws. Another federal court in Arkansas recently dismissed a similar challenge. But, in doing so, the court relied on FAIR without discussing the salient differences between the Solomon Amendment and anti-BDS laws—making the decision vulnerable if an appeal is pursued.
As Justice Louis Brandeis wrote, “the remedy to be applied” to disfavored speech “is more speech, not enforced silence.” Senator Rubio and others opponents of BDS should stop trying to use the power of the purse to stifle anti-Israel boycotts and instead make their case for why such tactics are the wrong means to express strongly held views on an issue of public importance.