The US Supreme Court building. Photo: Wiki Commons.

From the Los Angeles Times:

 In recent months, a number of states have passed laws or taken other official actions to punish companies that participate in boycotts against Israel. California soon may do the same. But if it does, it will be making a mistake.

You don’t have to support the so-called Boycott, Divestment and Sanctions movement to be troubled when state governments in this country penalize American citizens for their political speech. As the Supreme Court has recognized, boycotts are a form of speech, protected under the Constitution.

As I have already shown, the Supreme Court ruling that the BDSers cite says no such thing. It protects non-violent speech, and it protects peaceful picketers of a store as engaging in free speech. Boycotts aren’t speech, though — they are actions, and the First Amendment does not protect them. Nowhere in that ruling is it said that boycotts are free speech.

The editorial’s misstatements of the law continue:

Do such laws violate the 1st Amendment? Although the Supreme Court has held that government may engage in its own “speech” and express its own opinions, it also has held that government may not deny a benefit to a person (or a company) because he holds the “wrong” opinion. In our view, denying state business to an otherwise qualified contractor simply based on its views about Israel — and its participation in a legal boycott — goes beyond “government speech” and raises serious constitutional concerns.

No one is penalizing a contractor for their political views, only for their actions. If they call for a boycott of Israel that is OK; if they are engaging in such a boycott, then it isn’t. It is a fairly straightforward distinction that the LA Times is choosing to fuzz.

In California, the situation has grown even more complicated. Opponents of BDS in the Legislature previously proposed a bill that would have forbidden state contracts with companies engaged in a boycott of Israel. But after legal objections, the legislation was radically reconfigured.

From the news stories I have seen, the legislation was not rewritten because of “legal objections,” but because of political concerns to increase the chances of passage.

This editorial is misstating and misrepresenting the law. The reconfigured bill doesn’t even have the alleged problems that the initial bill had, so the entire purpose of this editorial seems to be to make a legal statement. The headline of the article is “Boycotts of Israel are a protected form of free speech” — but that is simply not true.