Federal Judge Says Boycotts Aren't Protected Speech

from the WTAF dept

A federal judge in Arkansas has delivered a truly WTF First Amendment decision related to a state’s anti-Israel-boycott law. The law states that companies contracting with government entities cannot engage in boycotts of Israeli products or services. Those doing so are either forbidden from doing business with the state government or forced to sell their products/services at a substantial discount.

In this case, the Arkansas Times’ steady business relationship with an Arkansas college has been disrupted by the Arkansas law seeking to punish businesses that engage in boycotts of Israel. Every company doing business with Arkansas government entities must sign a certification stating they are not boycotting Israel. The law has been in effect since 2017, but this year the Times refused to sign the required certification. This refusal cost the paper its advertising contract with the school, since the only other option under the boycott law was to sell its services at a mandated 20% discount.

The Times sued with the assistance of the ACLU, seeking to have this law found unconstitutional. So far, the ACLU has managed to get similar laws blocked/rewritten in two other states. The judge in this case, Brian S. Miller, even points to the ACLU’s successful lawsuits, but still manages to come to the opposite — and insane — conclusion that participating in a boycott is not protected speech. From the order [PDF] denying the Arkansas Times’ request for an injunction:

The Times is unlikely to prevail on the merits of its First Amendment claims because it has not demonstrated that a boycott of Israel, as defined by Act 710, is protected by the First Amendment. This finding diverges from decisions recently reached by two other federal district courts. Jordahl, 336 F. Supp. 3d at 1016; Koontz v. Watson, 283 F. Supp. 3d 1007, 1021–22 (D. Kan. 2018).

In Jordahl, the court had this to say about Arizona’s boycott law:

A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott…

[…]

The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change.”

In Koontz, the federal court similarly found Kansas’ anti-boycott law unconstitutional:

[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.

None of this matters in this court, where somehow it’s possible to separate the act of boycotting from the speech it represents in order to allow the government to punish companies for expressive acts.

First, a boycott is not purely speech because, after putting aside any accompanying explanatory speech, a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media.

[…]

Second, such conduct is not “inherently expressive.”

[…]

It is highly unlikely that, absent any explanatory speech, an external observer would ever notice that a contractor is engaging in a primary or secondary boycott of Israel. Very few people readily know which types of goods are Israeli, and even fewer are able to keep track of which businesses sell to Israel. Still fewer, if any, would be able to point to the fact that the absence of certain goods from a contractor’s office mean that the contractor is engaged in a boycott of Israel. See id.; c.f. FAIR, 547 U.S. at 66. Instead, an observer would simply believe that the types of products located at the contractor’s office reflect its commercial, as opposed to its political, preferences. In most, if not all cases, a contractor would have to explain to an observer that it is engaging in a boycott for the observer to have any idea that a boycott is taking place.

That’s the legal standard for expressive activity in Arkansas according to Judge Miller: if observers can’t tell what’s happening without additional speech, the government is free to punish companies for choosing not to do business with Israel. In almost every case, though, speech will accompany this act, which means the state government can punish companies’ protected speech by punishing them for the act this court believes can be separated from it.

All a decision like this does is encourage Arkansas companies to lie on their certifications. If the government wants to punish companies for lying, it will have to compel some actually protected speech from them: statements about their boycott of Israel. If no observer (and that apparently includes government entities engaging in business with private contractors) can tell a boycott is or isn’t underway, then the boycott can continue with the government none the wiser — so long as no one makes any statements about it. The government has kind of painted itself into a corner, using paint supplied by an Arkansas judge who should have done much better parsing both the law and the First Amendment.

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Comments on “Federal Judge Says Boycotts Aren't Protected Speech”

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89 Comments
BentFranklin (profile) says:

So Citizens United tells us that spending money is a form of speech. So not spending money is a form of silence. Is this judge saying that we don’t have the right to not speak? More broadly, we see this all the time, where the right frequently insists that we spend our money in certain ways, which is now a form of compelling speech.

Anonymous Coward says:

Re: Re:

But this seems to be a case of reverse sanctions. Government is only allowed to boycott sanctioned entities, and I can see the reason why they wouldn’t want to buy from suppliers with an agenda, but “Israel” seems rather specific.

If you look at it the other way, what would happen if Arkansas decided to do business only with companies run by white men, because their culture and priorities align reducing friction and cost in the project?

That would rightly be considered discrimination. Since Israel is a “race” and a nation, the same argument could be had here — so they put a rule in place to avoid that pitfall.

But Arkansas is prevented from accepting bids from companies that do business with Iran or North Korea.

I guess what I’m trying to say is that it’s much more complicated than a simple bidding system, and all the players are in a bit of a bind no matter which side they come down on; the only way to win is to not take sides and pretend the issues don’t exist. But government can’t do that, and the company in question chooses not to do that. The only logical choices here really fall to the independent company or for the lawmakers to carve out a new loophole.

Paul Simon says:

Re: Re: Re: Re:Diamonds on the soul of my Jews

um…

Because Hollywood made a killing off of song and video marketing, and because one side of world Jewry could pick a fight with the OTHER side of world Jewry, with a sockpuppet cause in between them (black africans ).

But Israel is just those guys and their zionist christurds duking it out against each other.

No profits in that!

Robert Beckman (profile) says:

Re: Re: “reverse discrimination”

What you describe is actually perfectly good, but I think you’re trying to get at something else.

State contracts with groups that minimize cost to the project, that happen to be run by (insert racial group) is ok.

State contracts with groups that are run by (insert racial group) because of their race, but don’t have the lowest cost is not ok.

The tricky part is case 2 (explicit racial discrimination) when that group happens to have the lowest cost – so that under race neutral criteria they’d still get the work. Not sure on the right answer here, other than voting the bastards out, of course.

Anonymous Coward says:

Morons

The answer is simple.

1) Raise Prices by 43%
2) Boycott Israel
3) Give everyone except the state 30% discounts (works out to original price, do the math.)
4) Give the state a 20% discount (Raises price to state by 14%).
5) Profit

If you have to disguise #3, make everyone sign a certificate saying they support the first amendment etc to get the 30% discount.

Anonymous Coward says:

Re: Morons

That is great advice for morons. For everyone else, how about:

1) Don’t be a tool for barely-concealed terrorist-supported and racism-inspired groups like the BDS.

No need for more steps if this bit of sound advice is followed. Seriously, it should take half a minute for someone with half a brain to figure out that the BDS movement should not be supported by anyone with even a shred of morals.

ADLification says:

Re: Re: Re: Morons

Is there a word for anti-bushman /!Kung! ?

Is there a word for anti-Paiute, or anti -Mayan?

All of those groups were genocided /slaughtered, and yet, only the Jewish supremacist word anti -semitism has currency in our dialectic.

Being against race supremacy in all forms begins by erasing their symbols.

The word anti -semitism is a symbol of ADL gangsterism, and racial supremacy.

Not being PRO -SEMITIC, is different than being anti -semitic

That One Guy (profile) says:

Trying to have it both ways

The judge’s argument falls flat when you realize that the ‘people might not know about the boycott, therefore it’s not free speech’ issue is in direct contradiction to the standards set forth by the state government.

If you have to make clear that you aren’t engaged in a boycott to avoid being penalized then I’d say it’s obvious that if someone refuses to do so the reason has been made pretty clear. The fact that an ‘external observer’ might not immediately know that a company is engaged in a boycott is irrelevant as the government does know, and they are the one handing out the punishment for it.

Anonymous Coward says:

Re: Re: Re:3 Trying to have it both ways

And do us a favour by not getting that citation from frikkin Haaretz.

Are you asking me not to provide citations that conflict with your claims? Or are you preliminarily dismissing citations from sources you dislike? As you already seem to know of a relevant citation, but seem to wish to have everyone disregard it, I’m not sure exactly what you’re asking for. But I’m pretty sure it’s not intellectual honesty.

Anonymous Coward says:

Re: Re: Re:2 Trying to have it both ways

Try going back and reading that again slowly. What some other random BDS supporter says has no bearing on the situation at hand. There are plenty of reasons a person could support BDS and not be racist. So unless you have relevant direct quotes by the parties involved that back up your position, it’s still a garbage argument made in bad faith.

That One Guy (profile) says:

Re: Re: Trying to have it both ways

Replace "Israel" with "Blacks" and the decision makes more sense.

The LAW is terrible, but the interpretation is correct.

Challenge accepted.

If you have to make clear that you aren’t engaged in a boycott of blacks to avoid being penalized then I’d say it’s obvious that if someone refuses to do so the reason has been made pretty clear. The fact that an ‘external observer’ might not immediately know that a company is engaged in a boycott of blacks is irrelevant as the government does know, and they are the one handing out the punishment for it.

Done, and… nothing changes. It’s still a stupid ruling, because the judge tries to have it both ways in that the law penalizes speech but yet they try to argue that it’s not doing just that, because the general public might not know, despite the fact that the very group handing out the penalty does know.

If boycotts are protected speech(and at least two other courts have accepted that they are), then the fact that people might not know right away that a company is engaging in one should not make them magically not protected speech, if for no other reason than the important party, the ones levying the penalty for it, most certainly do know the reason for it.

PaulT (profile) says:

Re: Re: Trying to have it both ways

“Replace “Israel” with “Blacks” and the decision makes more sense.”

Not really. One its a country. The other is a protected class. Sure, you can argue that the reason for an Israel boycott is due to religion, but there are many valid political and social reasons to boycott that have nothing to do with the race or religion of the Israeli population.

If you follow this logic through, you shouldn’t be able to boycott North Korea because it can be argued that it’s due to the race of the people living there rather than their government. Which would be problematic, don’t you think?

Anonymous Coward says:

Re: Trying to have it both ways

If you have to make clear that you aren’t engaged in a boycott to avoid being penalized then I’d say it’s obvious that if someone refuses to do so the reason has been made pretty clear.

This right here is all you need for a 1st Amendment violation. The law compels speech since it makes you swear to something that is a personal matter. I wouldn’t sign this even if I weren’t boycotting Israel because it’s none of the states damn business whose products or services I choose to patronize.

Hatton Gloves says:

Where Israel is involved, clear law bends.

And I suppose that’ll be called "anti-Semitic" by Thad which will point up the extraordinary concessions to the aggressively militaristic regime which forcibly established itself in Palestine and displaced the Palestinians who are true Semites.

Anyhoo, for once I agree with Techdirt that this is a WHAT THE FUCK decision. I hope it won’t stand. Logically can’t, but you never know…

Gary (profile) says:

Re: Where Israel is involved, clear law bends.

Thad will have to wait in line, I’m happy to point out that your definition of anti-semitic is anti-semantic:

https://en.wikipedia.org/wiki/Antisemitism

"The root word Semite gives the false impression that antisemitism is directed against all Semitic people, e.g., including Arabs and Assyrians. The compound word antisemite was popularized in Germany in 1879 as a scientific-sounding term for Judenhass ("Jew-hatred"), and this has been its common use since then"

David says:

Re: Re: Where Israel is involved, clear law bends.

Hey in Nazi Germany “anti-Semitic” made perfect sense because the Nazis indulged in race ideology to vilify Jews and parade their grotesque caricatures of facial traits in the “Stürmer” and on propaganda posters. Of course, their ideology did not preclude them from also using similar caricatures of “bolsheviks” even though that would target Caucasians including the average German. But then the great thing about pseudo-science is that its limits are where you rather than logic stops liking its conclusions.

Pogrom Director says:

Re: Re: Re: Where Israel is involved, clear law bends.

Oh, I see.

Yeah, grotesque caricatures hurtz my feelz. But not neccessarily more than how the ADL /SPLC etc, and T.H.A.D. here at Techdirt embody the worst forms of censorship /dialectic control by censoring content.

Hitler also practiced this exact form of social control, burning books, paintings and statues-but without the internet, and speech police at Fusion Centers.

ADLification says:

Re: Re: Re: Where Israel is involved, clear law bends.

Thanks “trusted flagger” Cockroft!

I hope you will put you me on a “list.” maybe give me a cool patch to wear in the “leisure”camp you are building over at your blog.

Or is it a gulag?

Its so hard to tell the book burnings and recreation camps apart, one from the other, because they all start with speech policing, and “good society dames ” (who are nearly ALL lily white females)running narrative, just like you are doing now.

https://www.mintpressnews.com/youtube-censor-controversial-content-adl-flagger/230530/

Love,

Martha Mitchell and friends

SteveMB (profile) says:

First, a boycott is not purely speech because, after putting aside any accompanying explanatory speech, a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media.

So, refusal to buy something from Israel because it happens to be overpriced junk, with no ideological component to the decision, is not Constitutionally protected and may thus be prosecuted under these laws? Cool! I just need to set up some paper corporate residence in Israel and I’m good to go!

Personanongrata says:

Boycotts can Leverage the World*

Federal Judge Says Boycotts Aren’t Protected Speech

Federal court jester (ie judge) Brian S. Miller of the US Kangaroo Court Eastern District of Arkansas Marsupial Division is a complete disgrace.

Instead of striking-down a clearly unconstitutional law he contorts himself in a public display of jurisprudence pretzel-logic that aides/abets in limiting a citizens political speech (even corporate speech, see – First National Bank of Boston v. Bellotti, Citizens United v. Federal Election Commission). In this case the unconstitutional law and Federal court jester Brian S. Miller seek to protect a foreign government (ie Israel) from the results of it’s own official state sanctioned policies of apartheid and terrorism.

https://en.wikipedia.org/wiki/Citizens_United_v._FEC

https://en.wikipedia.org/wiki/First_National_Bank_of_Boston_v._Bellotti

Italicized/bold text below was excerpted from the website wikipedia.org found in a report titled –

Civil rights movement

Rosa Parks and the Montgomery Bus Boycott, 1955–1956

On December 1, 1955, nine months after a 15-year-old high school student, Claudette Colvin, refused to give up her seat to a white passenger on a public bus in Montgomery, Alabama, and was arrested, Rosa Parks did the same thing. Parks soon became the symbol of the resulting Montgomery Bus Boycott and received national publicity. She was later hailed as the "mother of the civil rights movement".

Parks was secretary of the Montgomery NAACP chapter and had recently returned from a meeting at the Highlander Folk School in Tennessee where nonviolence as a strategy was taught by Myles Horton and others. After Parks’ arrest, African Americans gathered and organized the Montgomery Bus Boycott to demand a bus system in which passengers would be treated equally.[47] The organization was led by Jo Ann Robinson, a member of the Women’s Political Council who had been waiting for the opportunity to boycott the bus system. Following Rosa Park’s arrest, Jo Ann Robinson mimeographed 52,500 leaflets calling for a boycott. They were distributed around the city and helped gather the attention of civil rights leaders. After the city rejected many of their suggested reforms, the NAACP, led by E. D. Nixon, pushed for full desegregation of public buses. With the support of most of Montgomery’s 50,000 African Americans, the boycott lasted for 381 days, until the local ordinance segregating African Americans and whites on public buses was repealed. Ninety percent of African Americans in Montgomery partook in the boycotts, which reduced bus revenue significantly, as they comprised the majority of the riders. In November 1956, the United State Supreme Court upheld a district court ruling in the case of Browder v. Gayle and ordered Montgomery’s buses desegregated, ending the boycott.[47]

https://en.wikipedia.org/wiki/Civil_rights_movement#Rosa_Parks_and_the_Montgomery_Bus_Boycott,_1955%E2%80%931956

https://en.wikipedia.org/wiki/Browder_v._Gayle

*
Thank you Archimedes

https://www.math.nyu.edu/~crorres/Archimedes/Lever/LeverLaw.html

Anonymous Coward says:

If you think it should be illegal for a bakery to boycott gay couples, whats wrong with outlawing a boycott of a country?

And besides, the law merely prevents the state from doing business with a boycotter (or paying a higher price). There’s no inalienable right to receive government contracts.

Those who boycott the Jewish state alone are no different than the Nazis and their supporters who boycott Jewish businesses.

Thad (profile) says:

Re: Re:

And besides, the law merely prevents the state from doing business with a boycotter (or paying a higher price). There’s no inalienable right to receive government contracts.

No, but there is a restriction on denying them in retaliation for political speech.

Those who boycott the Jewish state alone are no different than the Nazis and their supporters who boycott Jewish businesses.

…did…did you seriously just say that there’s no difference between a boycott and genocide?

Anonymous Coward says:

Re: Re: Re:

Look in the mirror before citing Goodwin (and learn to spell), as I didn’t compare the boycott of Israel to the Holocaust, the bombing of London, the annexation of Sudetenland or anything else the Nazis did. I compared the boycott of Israel to the Nazi boycott of the Jews, which is a fact, however inconvenient for you.

Later, the Arabs boycotted Israel (long before any settlements existed), while trying to kill all the Jews there too. Today, Hamas and its fellow terrorists boycott Israel, coincidentally while also trying to kill as many Jews as possible. The leaders of the BDS movement are openly against Israels existence, and are hardly against violence.

While it might be cool these days to blame all the worlds problems on the Jews, boycott Israel, and say its all just freedom of speech, just know the company that you keep and the factions you are supporting. You should also own your hypocrisy when you say that a business can boycott Israel, but the government can’t boycott a business.

I’ve been reading Techdirt for decades, and I agree with 99% of what’s written here, but this article is wildly off base.

Th.ad.s all, folks says:

Re: Re:

Hi, sorry to change the topic, but does anyone know of a good kosher bakery in Bethlehem, where I can get a wedding cake made?

I want one half chocolate,to represent my Ethiopian-Jewish fiances cock, and the other half, I want it vanilla, with lily white frosting representing my Sacred Rectal Sanctuary, aka my anus.

Does anyone know a good Jewish baker who can make our cake?

Leave your number with T.H.A.D., he knows how to contact me, but also, he is Techdirts resident rabbinical law and lashon hara expert, elected by Jonathan Greenblatt himself.

Thanks!
Bruno

Anonymous Coward says:

I wonder, for this judge, is it Ok to boycott a business because it discriminates against Jews, for example? How about boycotting one that’s run by Jews? Any reasonable person might disagree with the latter, but either both boycotts are lawful or neither is.

Replace Jews with any historically / currently vilified minority of course.

Dan (profile) says:

What are they preventing exactly?

I don’t see the clear First Amendment violation here.

No one is saying they can’t participate in a boycott.
No one is saying they can’t sell papers.

They’re only saying you have to give a discount. Any of you on Medicare already know the government does this on doctor fees charged to Medicare. If this is a violation, so is Medicare for dictating what can be charged by doctors. And as someone else already pointed out, the paper can jack up it’s price and give everyone the discount, or give the paper away for free. (Unless the article is leaving something out.)

Freedom of speech bars the government from preventing publication of the paper. It does not imply that one should be paid [full price] for it, in any case.

But, a stupid law and likely unenforceable, nonetheless.

Thad (profile) says:

Re: What are they preventing exactly?

They’re only saying you have to give a discount.

In other words, the government is assessing a penalty for protected speech.

Any of you on Medicare already know the government does this on doctor fees charged to Medicare. If this is a violation, so is Medicare for dictating what can be charged by doctors.

What in the hell does Medicare have to do with the First Amendment?

Freedom of speech bars the government from preventing publication of the paper. It does not imply that one should be paid [full price] for it, in any case.

No, but it does imply that the government is not allowed to impose a penalty on protected speech based on the political content of that speech.

Dan (profile) says:

Re: Re: What are they preventing exactly?

"What in the hell does Medicare have to do with the First Amendment?"

If the PRICE you can charge for your product was relevant to the 1st Amendment, the AMA would have brought a huge constitutional challenge for all the doctors forced to undercharge their patients. And they would win, barring any of the usual government tom-foolery. But price has never been a component. If it was, the whole free market wouldn’t exist as it does now. Correct me if I’m wrong but, didn’t Citizens United establish that money was speech, however didn’t specify an actual amount? The money itself is important to speech, but not the amount. Otherwise we would have limits in campaign funding.

"No, but it does imply that the government is not allowed to impose a penalty on protected speech based on the political content of that speech."

That aspect only goes so far. The government imposes all kinds of fees and penalties for being able to speak, or speaking out of turn. Money has never been part of the issue. (I concede there are exceptions.) In some states you need to pay for a state issued ID just to exercise your right to vote. That’s a penalty. Permits to assemble… and the list goes on and on. Sure, people have their panties in a bunch because this happens to be a paper, but there is no right for that paper to make any money. That’s up to them.

Thad (profile) says:

Re: Re: Re: What are they preventing exactly?

If the PRICE you can charge for your product was relevant to the 1st Amendment, the AMA would have brought a huge constitutional challenge for all the doctors forced to undercharge their patients. And they would win, barring any of the usual government tom-foolery. But price has never been a component. If it was, the whole free market wouldn’t exist as it does now.

What the fuck are you talking about? This is gibberish!

Correct me if I’m wrong but, didn’t Citizens United establish that money was speech, however didn’t specify an actual amount? The money itself is important to speech, but not the amount. Otherwise we would have limits in campaign funding.

There are limits on campaign funding. Citizens United threw out some of the limits that McCain-Feingold placed on political contributions, but the ruling did not establish that there can be no limits on campaign funding.

That aspect only goes so far. The government imposes all kinds of fees and penalties for being able to speak, or speaking out of turn. Money has never been part of the issue. (I concede there are exceptions.) In some states you need to pay for a state issued ID just to exercise your right to vote. That’s a penalty. Permits to assemble… and the list goes on and on.

None of those are content-based restrictions. They are neutral criteria that apply equally to everyone.

Sure, people have their panties in a bunch because this happens to be a paper, but there is no right for that paper to make any money.

I already responded to this. Just because you repeat it doesn’t make it any less of a strawman.

Anonymous Coward says:

Re: Re: Re:

No.

There will be a very detailed article about that and a lot more at some point.

There’s this little cluster**** of a dozen or so people who like to give the impression they are a much larger group. In that group are some hardcore anti-semites, and some white-collar types who don’t think anyone has connected the dots.

That Anonymous Coward (profile) says:

How much are they being paid to pass this law?
I can’t seem to find much of a nexus connecting Arkansas to Israel, but they have a strong history of passing stupid unconstitutional laws for those with deep pockets who “contribute” well to their campaigns.

A law to make corporate whistleblowing a crime…
A law to make it illegal to report on the abuse of livestock & failures to meet safety standards…

There is this fight on if Trump is owned by the Russians or not… we don’t have proof… yet.
We have elected leaders passing laws to benefit a foriegn nation in several states where its really hard to see a nexus where they actually interact… Perhaps we should be considering that is the proof.

cattress (profile) says:

Re: Re:

The Nexus is a combination of groups like AIPAC and ADL, which are pro-Israel, pro-zionist, are very friendly with ultraconservative Christian evangelicals because the restoration/creation of a true Jewish ethnostate in Israel is one of the necessary components of bringing about the rapture, and the return of Christ and end of the world. Or something along those lines. Arkansas, like other states that have or tried these laws is obviously a deeply conservative Christian state. I don’t have any good citations, or religious texts to refer to, but I’m sure a quick Google search will back me up if your interested.
It amazes me that Bernie Sanders, a Jew, points out that these laws are unconstitutional, and yet a bunch of Christians call BDS anti-Semitic and vote in favor of unconstitutional laws anyways. There is nothing anti-Semitic about demanding that Israel be held to the beliefs and teachings of it’s official religion and reason for existing.

That Anonymous Coward (profile) says:

Re: Re: Re:

We have people dying in the streets from the cold, hunger, disease, addiction…But making sure no one can boycott Israel is much more important.

A pox on all of them.
The truly sad thing is even if they managed to set the table for the rapture to happen, they’ll still be here because they have failed to live up to the teaching they claim are so dear.

Yournota Torahscholarareyou says:

Re: Re: Re:Have you read Jewish law?

Re: that Israel be held to the beliefs and teachings of it’s official religion
….

Even a cursory peek at the Talmud, and Torah reveals that indeed, discrimination, and all kinds of bizarre, biased, frequently homicidal conduct is the CORNERSTONE of those books.

Disabuse yourself of the idea that there is anything in the bible /torah /talmud that has anything to do with fairness, equality, justice, etc.

These books are the enshrinement of “deferrence ”to a form of clinical sociopathy /psychopathy.

Bruce C. says:

Strange ruling indeed...

I wonder how this judge would have ruled on "Citizens United". He pretty much is saying that money is NOT speech. Further, Citizens United was really based on freedom of peaceful assembly, not freedom of speech, so the Times should have won on those grounds. A boycott is a protected gathering of people.

First, a boycott is not purely speech because, after putting aside any accompanying explanatory speech, a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media.

Hugo S Cunningham (profile) says:

Fed can (and has) outlawed boycotts. States? not so clear.

It is settled law that the US Federal government can both impose boycotts ("sanctions," etc), and prohibit conformity with foreign boycotts
https://en.wikipedia.org/wiki/Boycotts_of_Israel#United_States_government_response
This flows from Federal powers to regulate foreign relations and to wage war.

I am not sure to what extent Congress can delegate this power to the States.

Hugo S Cunningham (profile) says:

There are boycotts, and then there are boycotts...

I respect economic boycotts against the illegal settlements in occupied Palestinian territory. But I despise the "academic boycott"– stalking, harassing, mobbing, and slandering Israelis on US campuses. "Academic boycotters," repudiating the comity that underlies academic freedom, deserve no such comity in return.

Bini “bury em from de river to de sea”Naziyaho says:

Re: There are boycotts, and then there are boycotts...

"stalking, harassing, mobbing, and slandering Israelis on US campuses"

Yeah, that never happens. Haha. You live in reverse Bizarro world.

Campuses are full of stalkers, but those stalkers start at Hillel, and other cowardly little NGOs.

Its well documented.

Anonymous Coward says:

It is highly unlikely that, absent any explanatory speech, an external observer would ever notice that a contractor is engaging in a primary or secondary boycott of Israel.

Uh… the speech in question would ve directed toward the government of Israel, assuming there is any. Why does anyone need to broadcast their opinions constantly in order for them to be protected speech?

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09:35 Saudi Prosecutors Are Targeting A US Citizen For Tweets Criticizing The Government (18)
13:36 Finally, Some Good News: Federal Anti-SLAPP Law Introduced (9)
16:43 5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate (625)
12:03 Court To Public University: Yeah, It's A 1st Amendment Problem When You Delete Comments You Don't Like (16)
10:46 Judge Blocks 'No Recording Cops Within 8 Feet' Law Even Arizona Cops Don't Want To Defend (6)
09:31 Virginia Court Rejects Prior Restraint, Says Old Law Used In Attempt To Ban Books Is Unconstitutional (18)
12:20 Censorship Starts At Home: Turkish Gov't Controls The Press, Repeatedly Claims It Does Not Control The Press (6)
05:35 Wannabe Censor Ron DeSantis Is Now 0 For 2 With His Censorship Bills: Court Throws Out His 'Stop WOKE Act' As Unconstitutional (34)
09:38 Elon Musk's Legal Filings Against Twitter Show How Little He Actually Cares About Free Speech (35)
12:07 Virginia Politicians Are Suing Books They Don't Like (65)
09:21 Appeals Court Corrects Its Previous Error, Holds That Recording Cops Is A Clearly Established Right (8)
15:27 Federal Court Allows Protesters' First Amendment Suit Against Violent Boston Cops To Continue (26)
19:39 Student Expelled Over Off-Campus Nazi Joke Can Continue To Sue The School, Says Appeals Court (205)
10:42 Twitter Sues Indian Government Over Orders To Block Content (3)
10:47 Policymakers Need To Realize How Any Internet Regulation Will Impact Speech (135)
10:44 More Than Two Thirds Of States Are Pushing Highly Controversial (And Likely Unconstitutional) Bills To Moderate Speech Online (50)
13:38 Australia's Upside Down Internet Liability Policy Shows How Section 230 Enables More Free Speech (87)
09:28 The Moral Panic Is Spreading: Think Tank Proposes Banning Teens From Social Media; Texas Rep Promises To Intro Bill (88)
12:15 Federal Agent Stupidly Threatens Twitter User With Arrest Over Protected First Amendment Expression (57)
09:31 How The Dobbs Decision Will Lead To Attacks On Free Speech; Or, Why Democrats Need To Stop Undermining Free Speech (52)
10:46 Devin Nunes Loses Yet Another SLAPP Suit, This Time In California (21)
09:28 Philippines Orders Critical News Organization, Rappler, Shut Down; Just As Rappler's Founder Argues Against Free Speech (11)
09:19 Clarence Thomas REALLY Wants To Make It Easier For The Powerful To Sue People For Criticizing Them (32)
15:39 Twitter Successfully Quashes Sketchy Copyright Subpoena Over Billionaire's Critic On Twitter (237)
12:14 Giant Private Prison Company Goes To Court To Try To Get Lawyer To Stop Tweeting About Them (15)
10:48 UK Approves Extradition Of Julian Assange, Allowing The US Government To Continue Criminalizing Journalism (46)
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