RT @bradheath: "When you smugly drop 'You can’t shout ‘Fire!’ in a crowded theater' in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters."
RT @NSQE: I read about halfway through this and thought two things: A) this is a damn good article and B) who the fuck wrote this, they sure have been reading a lot of...oh, of course it’s @Popehat. https://t.co/65tEH0zjEm
RT @getongab: "If you’ve read op-eds about free speech in America, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment," argues @Popehat. "Those tired tropes are barriers to serious discussions about free speech." https://t.co/iBQ00sfNtw
RT @JeffreyGoldberg: "So when you smugly drop 'You can’t shout ‘Fire!’ in a crowded theater' in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters." -- @Popehat:
So when you smugly drop “You can’t shout ‘Fire!’ in a crowded theater” in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters. This is not persuasive or helpful.
>Many other countries allow substantially broader limits on free speech.That’s relevant to what the law in America should be, but it has nothing to do with what the law is.
You are going to find mixed dialogue on Reddit in particular, because Reddit is a mixed group. While it seems predominantly US, there are many other countries checking in. I am not arguing with the article, simply pointing out that you are going to encounter arguments being made here from diverse nations, always best to clarify what/where the person is referring to if they have failed to do so themselves before slamming some of these law facts down.... at least on reddit haha
>Everybody has the right to free speech however no one had to give anyone s platform for free speech either
What kind of platform are you talking about? Colleges disinviting speakers?
The reason I ask is that most people I've heard using the "platform" line are getting it wrong.
For the college example, I think it probably matters if it is a public or a private school. I’d be surprised if, say, Liberty University was required to protect the free speech rights of its students or could be sued for limiting their free speech rights.
That's right, not all speech is protected. Freedom of speech as a principle does not protect speech that is illegal, such as defamation, libel, slander, child pornography, lying under oath, shouting fire in a crowded room when there is not fire, incitement to violence, threats of violence, intellectual property theft, etc... A general through-line of what speech is protected is that opinions/beliefs are legal and protected.
Great article. I’ve always felt that it was foolish to attack free speech when the real problem is bigotry and hate. Free speech isn’t the problem, and fighting against intolerance doesn’t require us to overturn the First Amendment.
This is naive. A lot of the techniques we use to disrupt and stymie international terrorism can’t be used for domestic terrorism because of free speech protections. For instance, the laws against providing material support to terrorist organizations can’t be used to prosecute people who provide support to white supremacist organizations, because the government faces a gigantic barrier to getting those groups declared terrorist organizations due to the first amendment. This is not an issue for prosecuting people who provide support for foreign terrorist groups like Al Qaeda and Hamas. This one of the reasons there is an enormous distinction between domestic and international terrorism when it comes to law enforcement.
That’s a good point, but I think the issue is a little more nuanced than the divide between foreign and domestic groups.
If I wanted to use free speech to advocate for ISIS or al Qaeda or to advocate for radical Islamic beliefs/ideology, I’m free to do so without worrying about being charged with providing material support for terrorism. It’s not different than advocating for the KKK or the Aryan Brotherhood or whatever. There have been attempts to pass laws that would criminalize or prohibit propaganda from supporters of groups like Al Qaeda, but they haven’t gone anywhere in the US.
Personally I think that’s for the best. We can agree that propaganda from ISIS or propaganda from white supremacists is bad, but I don’t trust the government to draw the line. What happens if they decide, as they have decided in the past, to go after groups whose beliefs are unpopular with the government but whose activities aren’t criminal?
It wasn’t that long ago that the feds attempted to equate Black Lives Matter activists with white supremacists and promote the concept that “black identity extremists” were a major domestic security threat. If we allow the feds to criminalize merely advocating for unpopular beliefs then I believe that this power will be abused as it has been historically.
I feel like this article, and most discussion of free speech, misses the mark on where the public needs edification. Most of the debate I've heard about protection of speech comes from a general misunderstanding of when the First Amendment is even implicated. Did the government silence the speech, or did someone just think you're a jerk?
But if I put 10 law or political-science professors on TV and ask them whether particular speech is protected by the First Amendment, there is a substantial chance that some of them will give responses based on what they think the law ought to be, not based on what it is.
I think the wording here is a bit off. What the law ought to be is what one wants it to be. What maybe the author meant was the distinction because de jure and de facto.
Political-science professors may have a particular interpretation of the law, and that's what they believe the law is, de jure. How the courts interpret it, is what the law is de facto.
Saying the former is just people espousing their opinion of what the law ought to be is wrong, because that's what they believe the law is, even if the courts disagree. They may actually wish the law to be different from what they interpret the law to be.
My personal favorite is the trope about the freedom from the consequences of your speech. Well yea, people can boycott your store if you're a business owner, but they can't harass, threaten, or incite violence against you for speaking. It especially astounds me when people use the line when defending the actions of a person punching someone they don't agree with. Absolute unprincipled insanity.
I got to say, if you came up to my wife and started harassing her, say calling her a whore or something, I would probably punch you in the face, legal consequences and all. I don't see how that response is insane.
Freedom of speech necessarily guarantees freedom from consequences. Obviously not all consequences nor in all cases, but in every case outside of the narrowly-defined exceptions. If it didn't, it would mean nothing other than that prior restraints were illegal (though most of the people who parrot "freedom of speech isn't freedom from consequences" probably would be fine with those).
> Freedom of speech necessarily guarantees freedom from consequences.
I think you are using the word 'consequences' differently. Freedom of speech means freedom from consequences imposed by the government. But it doesn't mean freedom from other consequences. Like boycotts or being ostracized from polite society.
The only actual consequences involved with freedom of speech is that the offended party has the freedom to be offensive back. That's all it ever should be. Once you think consequences include physical harm, you're in the wrong and the law should deal with you, should you ever try to bring about those consequences.
> The only actual consequences involved with freedom of speech is that the offended party has the freedom to be offensive back.
... which means that the "trope" is accurate sometimes, and therefore may be used.
Why is everyone acting like people think they can punch someone in that situation and get away with it? Literally nobody is arguing that they can punch a Nazi and be completely free from liability or culpability for that assault. The point is freedom of speech doesn’t stop anyone from *actually* punching a person for exercising that constitutional right. If someone says, “I’m gonna rape your mother and behead your dog,” and gets punched in the face, it’s ridiculous for the one who got punched to say, “You can’t do that! I’m exercising my right to free speech!” Just because they’re exercising a constitutional right doesn’t mean they’re totally protected from all consequences whatsoever, and the vast majority of people realize that talking like that runs the risk of pissing off someone enough to get them to use violence to shut you up. People who talk like that are protected from the *legal* consequences of exercising that right, but that’s not the consequences people are talking about when they repeat that trope. And just because you can press charges for getting punched over some stupid shit you said does nothing to change the fact that you still got punched for saying stupid shit.
It depends what you are talking about when you say "freedom of speech". If you are talking about the 1st amendment right, then this is necessarily incorrect, as your 1st amendment right only applies to government action. You could be killed for what you say, and as long as the government did not do the killing, your 1st amendment right is not implicated.
But if you are speaking of freedom of speech as a philosophical idea, then what you say could well be true, though I think it gets a bit more complicated than that.
The freedom of speech absolutely does not protect you from being punched in the face by another individual for the things you say. Laws against assault do that . . . but those have nothing to do with the freedom of speech.
Right, but people use the excuse of "your freedom of speech doesn't include freedom from consequences" which invariably links the two if not merely in principle. You're certainly right, but some people think that speech they don't agree with warrants physical assault.
But nobody thinks it *legally* warrants physical assault. Everyone who says that still recognizes that they can go to jail for physically assaulting someone in such a situation. I’d be shocked if you can dig up an instance where someone says, “I can punch someone for saying things I don’t like and not go to jail for it.”
I think your argument seriously misconstrues the point of people saying “freedom of speech doesn’t mean freedom from consequences for speech.”
There are somewhat mainstream communities on both sides of the aisle arguing that violence against the left/right is self-defense and therefore moral and/or legal. Keep your eyes open and you'll spot it eventually.
I was looking at it more from a philosophical standpoint. Legalese aside, if you value the freedom of speech then you should tolerate it even when you disagree with the message. You can't respect the first amendment while assaulting someone for saying something you don't like.
The first amendment places zero restrictions on an individual acting in their capacity as a citizen. If someone gets mad enough to punch someone, then they already don’t care about any legal repercussions for assault. We already punish people for assaulting someone anyway. There’s nothing the law can do to prevent someone from punching someone else for saying stuff like “all Jews should die.”
And you can’t just say “legalese aside” when talking about the law.
If you read my comment, you'd see i was talking about the concept of the freedom of speech in itself. My point is that if you respect the idea of free speech, you would respect that right for everybody, not just the people who say stuff you like. What i meant by "legalese aside" was more to discount the legal consequences that don't directly pertain to free speech (e.g. assualt)
They are also conflating the First Amendment restrictions on speech by the government with the overall principle of free speech. The principle is broader than the First Amendment's protection, but it is a moral argument rather than a legal one.
If you are young - don't let all this pearl clutching fool you. It's always been like this. We just didn't have twitter and facebook before.
What speech should be protected by the First Amendment is open to debate.
Well actually - it wouldn't be free speech if the freedom to say your opinion is up to debate!
Those tired tropes
You mean like "The level of regulation on Free Speech is up to debate"? The author's "I'm smarter than you" attitude sure makes it a tough read - even though there is useful information. Kind of reminds me of the Democrat's approach to politics for the last decade or so, actually.
> Well actually - it wouldn't be free speech if the freedom to say your opinion is up to debate!
I don’t get what you’re trying to “well actually” here. Are you denying that there are actual limits on protected speech?
I've seen him on twitter and use to follow him, he does have a smugness and had issues when people called him out on things. The biggest thing though is how he wouldn't be consistent in his arguments for somethings which showed he has a bias.
I'm sure he came up with his name and uses it often in the 3rd person too...
Nothing on earth justifies his attitude, and it takes what otherwise could be useful points and buries them under his ego. Deep... Deep under. Maybe you want to take the time to dig out the useful parts, but I long ago decided life is too short to deal with people like him.
And the first 2 points aren't really that groundbreaking either.
The most persuasive argument I've seen that the government should not be able to punish "hate speech" is -- who defines what "hate speech" is? Do liberals want the Trump administration deciding what constitutes hate speech?
That's why any exceptions to freedom of speech need to be very narrowly defined and well justified, with no room for arbitrary enforcement. It's just too easy for a government to take any "cracks" is the freedom to suppress opposing viewpoints.
However I think there's one point where the article makes a bit of a weak argument:
By definition, if stochastic terrorism doesn’t call for violence, it doesn’t fall outside the First Amendment, because it’s not intended and likely to lead to imminent lawless action.
I don't think the definition of "stochastic terrorism" excludes "intended and likely to lead to imminent lawless action." In fact I think that's the whole point of defining this new term -- that though some speech may not explicitly call for violence, it may be intended and likely to lead to it. I'm not sure whether this would hold up to the law, but that's the intention behind the term.
That may be the reasoning behind manufacturing the term "stochastic terrorism", but the article suggests it has no basis in law, nor is it likely to gain favor with the court.
It completely fails the test of imminent lawlessness, which is a very bright line test.
So, the way I think about is thus.
A 'hate crime' is a crime where the effect is to intimidate or frighten a group of people by targeting an individual simply because of some trait the perpetrator dislikes. You might beat up one gay woman, and if you're doing it because you know and dislike that person, or because you were robbing that person, that's just assault and battery (disclaimer: I am not a lawyer). But if you're doing it simply *because* the person is gay, and do it in a way so that other gay people are aware that they're being targeted for their identity, then that's a hate crime in *addition* to being assault & battery.
So normal speech can be offensive or vulgar and that's okay. But if it targets a whole group with the intent of making people with a specific characteristic feel unsafe or threatened, that has perhaps gone beyond simply expressing your opinion. It has moved to an implicit threat. That's hate speech.
As to who determines what constitutes hate speech, no, it shouldn't be the executive branch. It should be courts, using precedent.
> As to who determines what constitutes hate speech, no, it shouldn't be the executive branch. It should be courts, using precedent.
Err, this should be the legislature, as they are the ones who create the laws. The courts just find you guilty if you violated a law. The court doesn't define hate speech, hate speech must be defined in order to be found guilty, and that comes from the legislature. Hence why this is such a difficult topic as "how do you define hate speech _in law_?" The executive branch wouldn't be defining hate speech anymore than the courts would.
The legislature passes a law saying, "Assault will be punishable by X. Assault is defined as making a physical attack."
Then the courts figure out, "Okay, this guy threw a pie. Is that an assault? That guy stabbed his friend with a pen on a dare, and his friend got pissed. Is that assault? This guy threw a golf club in anger but it missed, and it's unclear whether he was trying to hurt the guy. Is that assault?"
Usually you'd have juries involved.
You might want to review what [assault is](https://legal-dictionary.thefreedictionary.com/Assault). There are elements to assault, as there are to any law.
* Intent is an essential element of assault.
* In criminal law, the attempted battery type of assault requires a Specific Intent to commit battery. An intent to frighten will not suffice for this form of assault. (Here's your golf club answer).
* There can be no assault if the act does not produce a true apprehension of harm in the victim.
* Virtually all jurisdictions agree that the victim must be aware of the danger, with a few caveats.
What is the differentiator between what you are advocating for and what is already on the books? What clear element should be added as a definition of "hate speech"? Are you advocating that only speech should now be a form of assault, thus a precursor crime to assault (as assault clearly requires more than just speech)? More than assault, but less than aggravated assault, which a felony? Less restrictions on "true apprehension of harm"?
Edit: Sorry, posted too soon.
The legislature must come up with that differentiator. It's not up to the courts. The courts only find that the elements have been satisfied to warrant a guilty verdict if all are found true.
Like I said, I'm not a lawyer. My understanding was more along the lines of "I can't define what pornography is, but I know it when I see it."
So I guess hypothetically you could have a legislature criminalize "speech or writing that expresses prejudice against a particular group, with the intent of making people with a specific characteristic feel unsafe or threatened." But then, I dunno, it's up to the jury to determine what a given person's intent was?
It's definitely not something that's easy to draw a bright line for. I don't think Trump, for instance, has used hate speech, even though he's pretty mean and insulting to folks. But somebody like David Duke, I'm pretty sure you could have made a case he was trying to intimidate black people.
I understand where you're coming from, at least I hope I do. You see clear harm, and I'd even agree there is, and want to stop it. Compassion, by the definition.
However, this is one of those times where "no good deed goes unpunished". As you said, group, but then we'd have to also define those groups. Any group as defined in the Civil Rights Act of 1964 (race, color, religion, sex, or national origin)? Beyond that to any group, including sexuality? How about political groups?
Take a saying, "I wish all black people would die." Easy. Change the group. "I wish all Republicans would die." They're both clearly bigotry. Would both be covered under this law? One could even argue the Republican one is worse given it would have likely several times the numbers, but is admittedly "these tens of millions or this hundred+ million..." Both are beyond bad.
But it also highlights the point. Bigotry is bigotry. We can say harmful actions are illegal, and they are regardless of group or individual. Bigoted speech, in all flavors, though very much wrong, is not. Simply for the fact that groups are not easily defined. Making some groups more special than others simply so they have status under a law is against the very principles it underlays: equality.
I agree David Duke is evil and shouldn't have a platform to spread his hate. But, I also realize that silencing him would cause considerably more harm to a far greater amount of people in the long run as groups are defined, redefined, and the law becomes a shadow of its former self. Read up on Russia's The Great Purge, which used ever shifting definitions to define new ways to define counter-revolutionaries.
> "I wish all black people would die." Easy. Change the group. "I wish all Republicans would die."
Alone, no, neither of those are hate speech. Context is key. Speaking to a large group who see you as an authority figure, when people in that group have committed hate crimes against people of that group . . . and then the speech is close to incitement.
The classic line from Holmes is a great illustration of the concept of an exception to first amendment protection. It is perfectly acceptable to yell fire in a crowded theater. Say you're an actor and that's your line in the play, or if there actually is a fire then please, alert people to the danger.
The difference between alerting people of an actual danger, and creating a danger by issuing a false alert, is the difference between two actions, the second being essentially an actus reus, that like fraud or incitement to riot, are not protected by the first amendment.
I think there are two interesting areas in which this framing creates a kind of cognitive dissonance: boycotts and sedition. Especially in the second case and I bet also in the first, most people's instinct is to say that each is protected by the first amendment. But under the interpretation above, I don't think either really is.
Boycotts aren't expressive speech, they're coercive conduct. However, when the people doing the boycotting are the ones actually harmed by the behavior, it can be free speech and not subject to state regulation. NAACP v Claiborne was a close call on the boycott.
Offhand the speech/conduct distinction is rarely helpful analytically. The act of burning the flag is "conduct" but also expressive speech.
Also, I have no idea what you mean by NAACP v. Claiborne being "a close call on the boycott" seeing as it was 8-0 (J. Marshall recused) and I don't see any language suggesting that 8 justice majority was teetering about the issue. Can you pin cite me to where you're drawing that conclusion from?
The presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. See United States v. O'Brien, 391 U. S. 367. [Footnote 47] A nonviolent and totally voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. See Giboney v. Empire Storage & Ice Co., 336 U. S. 490; NLRB v. Retail Store Employees, 447 U. S. 607. The right of business entities to "associate" to suppress competition may be curtailed. National Society of Professional Engineers v. United States, 435 U. S. 679. Unfair trade practices may be restricted. Secondary boycotts and picketing by labor unions may be prohibited, as part of "Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife." NLRB v. Retail Store Employees, supra, at 447 U. S. 617-618 (BLACKMUN, J., concurring in part). See Longshoremen v. Allied International, Inc., 456 U. S. 212, 456 U. S. 222-223, and n. 20. Page 458 U. S. 913
The longshoreman one was a political secondary boycott of russian goods for their invasion of Afghanistan... foreign secondary boycotts are not ok, that's exactly what bds is.
Claiborne was also a secondary boycott (it was a dispute with city/county/state and esp police, not the hardware store, that's tenuous, but it came down to local boycotters who were affected by town/county/state so antitrust won't trump speech, but if harlem showed solidarity and boycotted (imagining arguendo harlem hadno racial problems) white or something more tenuous, latino business, ny could shut down a latino boycott, and if harlem=utopia, a white one too... After my quote they quote lower court highliting lack of ulterior profit motive etc here- harlem boycotting spanish harlem likely would have an inferrable ulterior motive. It can be poltical speech, but it also can be foreign policy like the longshoremen & bds, and it can be anti-competitive. And flag is a symbol, like an eagle feather, burning an eagle won't get 1a protection, even though on par with flag as symbol (i would offer to defend the eagle-burner if they came my way, bc the arguments would be fun, but i'd lose; secondary boycotts are closer to eagle than flag, hardware store didn't arrest or shoot them, but you can't boycott police, without a sensible nexus, its not protected.
Many thanks for the citation and rundown. I think I disagree that BDS is an illegal secondary boycott though, and (as a general matter) I don't think Longshoremen is applicable to the BDS movement.
Longshoremen is grounded in the National Labor Relations Act, so there has to be a labor-company nexus. I'm not a BDS advocate, so I'm not 100% on their policies/strategy, but institutions deciding to not carry Israeli made goods/products, not contracting with Israeli companies, not investing in Israeli securities doesn't invoke the secondary boycott analysis under the NLRA at all - a company engaged in that sort of boycott is not striking or picketing against their employer, so on its face the NLRA's prohibition on secondary boycotts doesn't apply.
To be clear - a hypothetical union that is pro-BDS who is picketing/striking to end its employer's commercial relationship with Israel - that's a prohibited secondary boycott under Longshoremen. But an institution who simply chooses to not do business with Israeli businesses - that's not a secondary boycott and not even governed by the NLRA.
Also: foreign policy boycotts definitely aren't presumptively invalid as you appear (its late, so correct me if I'm wrong) to be asserting. Otherwise boycotts of South African goods/businesses/etc. during the apartheid era would run afoul of these principles and that simply was not the case.
Yeah, apartheid was foreign secondary, but US sanctioned it (and maybe predated the other laws), unsanctioned ones are illegal. https://www.bis.doc.gov/index.php/enforcement/oac (too hard to track down the cfr and usc sections but Treasury and the IRS in addition to NLRA are in on it, and require quarterly reporting if someone asks you to participate in one!). America is known for the greatest free speech protections on earth, but tied with that is economic dominance and fidelity to capitalism and the pax americana that has come with it. I never watched 'duck dynasty', but 5ish years ago few a good clients grumbled about the guy being fired, 'what about free speech?'. I gave my lawyer answer of how it protects you from government, but the explanation that made him stop grumbling was 'his speech cost the network more money than he made them,'. That's what this is, us needs israel in the mideast (putting aside fact hezbollah/PLO, iran were behind all the previous iterations of BDS, and this one too), us didn't need SA, and aside from hurting an innocent shipping company, US didn't need more conflict with ussr at end of 70s. you're right its too late, but this was good, you made me think harder about this than previously, thank you. there are some cases and law reviews that discuss how even domestic secondary boycotts are disfavored, but i'm not going to read them and they'll be ammo for the next time this comes up. cheers.
There is a long-standing [prohibition on boycotts](https://www.bis.doc.gov/index.php/enforcement/oac) in international trade, especially concerning Israel. You are even supposed to report people that ask you to participate. I am not aware of any broad challenge to overturn this law.
I believe that two circuits have struck down anti-Israel boycott laws, but other laws have been upheld. Boycotts against Israel aren’t unlawful per se, but if you do it the government can discriminate against you in terms of awarding government contracts. I’m far from an expert on this, however.
I'd really like to know how much enforcement action has been taken on this law, because I wasn't previously aware of it, and it definitely smells like a 1A violation. According to that website itself "The antiboycott laws, however, apply to all boycotts imposed by foreign countries that are unsanctioned by the United States." - in other words, if the US Gov't is *okay* with the boycott, this restriction doesn't apply. (For instance, boycotts of South Africa were instrumental in economic pressure to end apartheid). And this law specifically applies to speech too, so its essentially saying "a boycott we don't like is criminalized, a boycott we do like is ok."
That sort of viewpoint discrimination is especially noxious to the 1A as currently interpreted.
Edit: [it appears several state level anti-BDS laws were struck down by lower courts](https://www.aclu.org/blog/free-speech/congress-laws-suppressing-boycotts-israel-are-unconstitutional-sincerely-three) so I'm not sure how the old Israel antiboycott law is being enforced. I guess they've made a tactical decision to not go after BDS with this law?
The TX one atleast was narrow (the statute was overbroad, but only bc it banned the palestinian university professor from advocating for a boycott, expressive speech about it was protected, engaging in the (coercive) conduct wasnot
I've read it any I don't see anything in the TX decision that was 1. narrow (the whole statute was enjoined at the preliminary injunction stage) and 2. carved the distinction you state between engaging in the boycott and advocating for the boycott.
In fact sections III.B.1.i.a and b of the opinion (this is the April 25, 2019 Amawi v. Pflugerville Independent School District PI decision) respectively and specifically find that the boycott itself is speech, that is to say "expressive conduct," and that they are 1A protected speech, so unless you have a pin cite to the contrary, I think you're mistaken.
"Following the Supreme Court’s direction in Claiborne, and in light of the analysis above, the Court concludes that Plaintiffs’ BDS
boycotts are inherently expressive conduct." Pg. 26
"(T)he Court finds that (1) under Claiborne, political boycotts are protected speech, and (2) none of the exceptions to that rule urged by the State apply to this case. The Court therefore concludes that Plaintiffs’ BDS boycotts are speech protected by the First Amendment." Pg. 29.
They talk claiborne because they're scolding the gov for not addressing it at all and trying to twist FAIR into a holding anti-political boycott (which is absurd as the court notes). I believe the dc focused more on merits, this was chastizing gov + inj factors, very little on merits. If its one i'm thinking, school required too broad pledge to not speak or believe in bds, the rest was ok, that was not, so they enjoined the employment contract, which was the dc focus, 5th is quite removed from the facts, onto abstraction (and calling bs on the gov).
>H.B. 89 does not prohibit any company from boycotting any person or entity of Israeli national origin—and on that basis—so long as the person or entity is anywhere in the world outside Israel or its controlled territories, and is not doing business in Israel or those territories. (Id. at 33). This "[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." (Id. (quoting Nat'l Inst. Of Family & Life Advocs. v. Becerra, 138 S.Ct. 2361, 2376 (2018))). This result follows even if the statements the Court cited in the Order do not reflect the motivations of the entire Texas Legislature—an assertion the State now makes, (see Mot., Dkt. 83, at 4), but for which it points to no evidence.
Wait, I'm not sure what document you're citing: the [5th circuit as far as I can tell has yet to weigh in on the Amawi case](https://www.courtlistener.com/docket/8416946/amawi-v-pflugerville-independent-school-district/), the PI decision is currently pending appeal. There was a motion to supplement the record yesterday, so the court cannot have made a ruling yet.
Or are you citing the DC Circuit court? Just trying to get it straight.
it was one from may, discussing an april or so order- on reconsideration maybe?. it appears I did remember the case wrongly, in part- https://reason.com/2018/12/18/everyone-is-misreporting-the-texas-bds-l/ - it's possible I was remembering my arguments against the complaint, and time made me think I read them from a judge, not myself (filed in mid december, when I had some downtime, so that makes sense to me, and I would totally self-aggrandize my forgetfulness... having to acknowledge a character flaw is what I deserve for not going to bed earlier)
It definitely happens, see [relevant slides here](http://www.yettercoleman.com/wp-content/uploads/2013/06/FCPA-Sanctions-Export-and-Antiboycott-Compliance.pdf).
There are also probably many more violations handled between companies and the regulators that never go to court or a press release.
People just don't talk about this much because it gets wrapped up in the bigger trade compliance umbrella.
Could a first amendment challenge work? Not sure (personally pretty skeptical), but sophisticated companies who can afford good defenses have paid these fines. This suggests that it is at least not a slam dunk defense.
It seems like most enforcement is on the technical reporting side, rather than active participation in a boycott side.
As in, they are going after behavior pretty far removed from 1A protections in the first place (reporting requirements) rather than activity more close to core 1A concerns. So you're probably right the way this particular law is enforced probably isn't susceptible to 1A attack. A BDS participant wouldn't be in a commercial contract with an Arab League state with an offending clause, (they are boycotting of their own volition) so presumably they wouldn't be touched by this law? [That would explain the push a few years ago for new congressional action to envelop BDS on this front.](https://www.congress.gov/bill/115th-congress/senate-bill/720)
I believe the issue has not been digested by the courts. But more to my point above, your reaction here is exactly what I was talking about when I said most people would expect a boycott to be protected by the first amendment.
If you look back through the /r/law threads on the Israeli boycott laws. the general issue is that while the first amendment definitely protects your right to advocate for a boycott, it does not necessarily protect your right to participate in one.
Totally crazy right? I get a giant bout of cognitive dissonance myself when trying to wrap my head around it.
> Totally crazy right? I get a giant bout of cognitive dissonance myself when trying to wrap my head around it.
I mean, my knowledge of it is usually the people with the boycott bans settle out before a bad precedent can be made. Or amend the law and move to dismiss on mootness.
> it does not necessarily protect your right to participate in one.
I have a hard time contemplating how this would be enforced. Like in the case of segregationist restaurant owers, its obvious when they weren't taking all comers. But if I'm running the investment portfolio of some major institution that's pro BDS, is the government gonna say "you must hold securities of companies that have Israeli assets?" how they hell would that work?
My personal economic participation in Israeli companies goods, etc. as a percentage of my own purchasing, is probably less that 1%. Am I therefore unwittingly participating in BDS and should be sanctioned under an anti-boycott law?
Put aside the merits of BDS, enforcement of a law such that someone or some entity *must* participate in the Israeli economy would be nuts. I suppose they could try to introduce evidence that someone is vocally pro-BDS, but a silent observer of the boycott would be impossible to sanction, imo.
> But if I'm running the investment portfolio of some major institution that's pro BDS, is the government gonna say "you must hold securities of companies that have Israeli assets?" how they hell would that work?
I'm speculating, but I think the best parallel is collusive behavior in antitrust law, where generally they can go after an *agreement*, explicit or implicit, but the acts are supporting evidence. A court can't generally force you to sell at a specific price but can penalize you for coordinating a price.
As you say, a silent participant would likely be immune, but this behavior isn't as effective as a boycott as an agreement.
>I have a hard time contemplating how this would be enforced.
Probably something similar to a general tax with a credit for every dollar spent on Israeli goods... Something essentially similar worked for the Affordable Care Act. ;)
I mean, so long as it raises *some* revenue... /s
I'm not sure how the law is supposed to be enforced either. Unless someone just flat out admitted to it. But isn't that the point of the law? To make sure that even if someone is participating they can't talk about it?
To me that's a somewhat stronger argument than boycotts are protected speech, that the point of anti-boycott laws is to silence a certain content of speech.
I know that a lot of state level BDS laws are written to require people who do business with the state government, including employees and independent contractors, to sign a statement swearing that they don’t support BDS. I don’t think there’s any real attempt to investigate whether someone is being honest when they sign that statement.
After all, how many individual people in the US really make sure to buy products sold by Israeli companies when they go to Walmart or go to a grocery store?
The only people who really get in trouble are people who refuse to sign the statement on principle. I have a hard time really understanding why this requirement is legal or illegal; I can’t think of too many examples of Americans being required to formally renounce otherwise legal political beliefs. Maybe Communism?
That might be how the implementation works; the actual laws tend to prohibit state pension funds and/or public works projects from doing business with a company involved in a boycott of Israeli (and sometimes other) companies.
This may still be unconstitutional...but the prohibition is based on actually engaging in the boycott, not on whether or not you sign the paper.
>Organizing a boycott against the draft, completing the census, or serving on a jury are all unlikely to be protected.
Huh? On the basis of what?
I would say those are all extremely likely to be protected.
Just like it's legal to tell people not to pay their taxes (so-called tax protestors, who say that the income tax is unlawful or unnecessary, or a combination of both).
Doing those actions, avoiding the draft, not completing a census form, not showing up for jury duty, can land you in hot water, but I'm pretty sure the current state of the law would not result in punishment for mere advocacy for those actions. Hell, the draft example is basically the facts of the Schenck case where Holmes used his discredited "fire in a crowded theater" line - Schenck was distributing anti-WWI draft leaflets. That case is widely seen as not good law, as Ken notes.
Just to get in front of a possible rebuttal - destroying your own draft card (US v. O'Brien) is not speech - its draft avoidance.
Morse v. Frederick, the bong hits case, is one of a long line of cases where SCOTUS has created this really weird (and misguided) 1A carve-out where students have drastically limited sppech rights vis a vis the educational setting. It's not really applicable to any other setting.