This Article examines how opponents of anti-BDS laws may extend First Amendment rights in the business context to a point at which they actually threaten the validity of much antidiscrimination legislation. Part I discusses the BDS movement and state-based initiatives that attempt to penalize businesses that actively engage in a boycott of Israel. It examines the handful of cases in which federal courts have addressed the constitutionality of laws that require state contractors to affirm that they are not actively boycotting that country. Part II transitions to a discussion of the ways the Supreme Court has historically resolved conflicts between antidiscrimination laws and the constitutional rights of freedom of association and expression, and notes a transition from deference to enforcement of such laws to a recognition of the expressive rights of individuals and groups in both noncommercial and commercial contexts. The Article concludes in Part III with an application of the existing jurisprudence to state anti-BDS laws and highlights the dangers that successful opposition to such laws might present to the continued viability of antidiscrimination laws. It concludes that affirmation of the expressive rights of pro-BDS businesses could lead to serious challenges to the constitutionality of laws designed to prevent bigotry in the conduct of commercial affairs—including the landmark civil rights laws of the 1960s.
Debbie Kaminer & David Rosenberg,
How the Conflict Between Anti-boycott Legislation and the Expressive Rights Of Business Endangers Civil Rights And Antidiscrimination Laws,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol55/iss3/5