It's part of the University of the Pacific (McGeorge Law School) Law Review symposium on Israel, Palestine, and the First Amendment, and it's based on amicus briefs that I had filed together with Profs. Michael Dorf and Andrew Koppelman. You can read the article here; here's the opening paragraph and the Introduction:
Anti-BDS laws, which bar government contractors from boycotting Israel, are generally constitutional—for the same reason that anti-discrimination laws are generally constitutional: Refusals to deal are, outside some narrow situations, generally unprotected by the First Amendment.
Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Forum for Academic & Institutional Rights, and it is the foundation of the wide range of anti-discrimination laws, public accommodation laws, and common carrier laws throughout the nation.
Thus, for instance:
- A limousine driver has no First Amendment right to refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
- A store has no First Amendment right to refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
- An employer in a jurisdiction that bans political affiliation discrimination has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
- An employer that is required to hire employees regardless of union membership has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
- A cab driver who is required to serve all passengers has no First Amendment right to refuse to take people who are visibly carrying Israeli merchandise.
