Free Speech Includes the Right to Boycott Israel

To do business with the state of Arkansas, you must certify that you don’t “engage in boycotts of Israel.” A federal appeals court deemed the law constitutional because it “only prohibits economic decisions,” and since those are “invisible to observers unless explained,” they not only are unprotected by the First Amendment but don’t even constitute speech. The high court declined to hear an appeal, even though it has previously said boycotts are “deeply embedded” in our political process and entail core constitutional liberties.

Can it really be constitutional for governments to penalize the silent choices people may make based on their views of the Middle East conflict? Doesn’t that amount to a thoughtcrime?

In 2017 Texas required any company contracting with the state to affirm that it “will not boycott Israel during the term of the contract.” Five plaintiffs challenged the law. One argued that the declaration was contrary to his “personal and political beliefs.” He had previously boycotted certain Israeli-made products

I stand with Israel too and find the views of the boycotters repugnant. But we should all fear the implications of a state using its power to penalize them. Governments are fickle, and one will sooner or later target a viewpoint, organization or country that you deem sacrosanct. Perhaps a progressive legislature will mandate that contractors boycott what it deems “apartheid” or “genocidal” countries. What then?

Under the Constitution, people are free to determine which products or stocks they buy, or don’t, without suffering viewpoint discrimination. The Supreme Court may eventually reaffirm that principle by striking down an antiboycott law. In the meantime, states should exercise restraint, even if their intentions are noble.