Rumsfeld v. Forum for Academic and Institutional Rights Inc.

The BDS boycotts are not inherently expressive conduct, just as a law school’s boycott of military recruiters on ideological grounds was not considered expressive conduct by the U.S. Supreme Court in Rumsfeld v. FAIR, Eugene Kontorovich, a professor at George Mason University Antonin Scalia Law School and a director at the Kohelet Policy Forum in Jerusalem, said.

“Choosing not to do business with people, entities for ideological reasons is a business decision, not a form of expression. Now, your explanation for why you are choosing not to do business is a form of expression, but not the underlying decision to not do business,” he said.

The Supreme Court rejected the law schools’ claims of violated free speech “because the schools are not speaking when they host interviews and recruiting receptions,” Chief Justice John G. Roberts Jr. wrote. “Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive.”

“Prior to the adoption of the Solomon Amendment’s equal access requirement, law schools ‘expressed’ their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it,” Roberts wrote.

The same is true of the BDS boycotts of Israel, Kontorovich said.

“The fact that you need to explain your motive is what makes it not inherently expressive. If someone is not doing business with Israel, we can not infer anything about their motives from that,” he said.

International Longshoremen’s Association, AFL-CIO v. Allied International Inc.

The case of union dockworkers who refused to handle Soviet cargo shipments should be controlling precedent for the challenges to state laws seeking to curtail BDS activity, attorney Marc Greendorfer, founded the Zachor Legal Institute, a think tank focused on legal challenges to the BDS movement, said.

Justice Lewis F. Powell wrote that the union’s secondary boycott activity violated federal statutes that “prohibit a union from inducing employees to refuse to handle goods with the object of forcing any person to cease doing business with any other person.”

The court’s unanimous finding in Longshoremen’s distinguished protected boycott activity from activity that has no protection under the Constitution, Greendorfer said.

“The court there found that the laws that allowed that kind of boycott activity were unconstitutional because this was not protected speech that existed under [NAACP v.] Claiborne, which is a primary boycott where an individual who is being directly affected by an act takes to the streets to assert his or her political rights,” he said.

“But that’s not what BDS is about … It’s basically third parties to a foreign dispute that is trying to affect U.S. foreign policy.”

NAACP v. Claiborne

Participants in BDS believe they are following in the tradition of black boycotters in Mississippi who refused to patronize white-owned businesses, according to Gadeir Abbas, senior litigation attorney at the Council on American-Islamic Relations. CAIR has filed lawsuits challenging anti-BDS laws on behalf of plaintiffs in Texas, Maryland and Arizona.

“It’s not similar. It’s the same thing,” Abbas said of comparisons between his cases and Claiborne.

That boycott included speeches and nonviolent picketing and participants “encouraged others to join in its cause. … Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and [14]th Amendments,” Justice John Paul Stevens wrote.

Abbas said the precedent in Claiborne makes clear that boycotts under the BDS banner are protected speech.

“From the Boston Tea Party to the Montgomery bus boycotts, to the boycotts against apartheid South Africa, boycott activity is political. It is political expression with a storied history in the United States,” Abbas said.

CAIR represents Bahia Amawi in her lawsuit over Texas’ anti-BDS law. Amawi is a speech pathologist in an Austin suburb who was no longer allowed to contract with a state public school district when she refused to sign the agreement not to boycott Israel.

“What [Amawi’s] case is about is whether an American citizen should have the right to decide what to buy and not to buy based on their political beliefs, and that’s a really easy question, we think.”