And while enjoining the law, the court thus “dispensed with an oft-repeated but mythical belief about free speech rights,” Glenn Greenwald observes, “namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views.”
Broadly speaking, the court’s decision in this case is likelier to be cheered by those on the left, where most of the energy behind boycotts of Israel emanate, and to be jeered by the Republicans and conservative Democrats who’ve lately pressed ahead with multiple efforts to legislate against economic boycotts of Israel.
The latter group typically eschews addressing the free-speech implications of their efforts, instead focusing on the critique that the Boycott, Divestment, and Sanctions movement, and other organized boycotts against Israel, are best understood as bigoted efforts that single out Jews, among the world’s people, for discrimination.
In turn, boycott supporters insist that there is a distinction between discriminating against Jews as such, as members of a religious or ethnic group, and targeting companies who do business in a Jewish state to object to its political actions.
That left-right script flips in a related legal controversy.
Christian bakers have argued that they have a First Amendment right to decline to bake cakes for gay weddings, even while serving gay customers. Their critics say they are unlawfully discriminating against gays, while the bakers insist there is a clear distinction between discriminating against gays as such and declining to decorate cakes that celebrate a particular action some gay couples take. (The case also involves arguments over religious liberty.) In both cases, part of the popular controversy around what amount to boycotts of conscience turns on how the subject of the boycott is conceived.
And interestingly, the Koontz v. Watson ruling leans heavily on a Supreme Court precedent upholding a 1960s boycott effort that explicitly targeted a racial group.
As the decision puts it:
The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Company.
In Claiborne, defendants––supporters of civil rights––organized a boycott of all white merchants after city and county officials had refused defendants’ demands for racial equality. Plaintiffs––a group of white merchants––sued in Mississippi state court seeking to recover damages they had lost because of the boycott. After an eight-month trial, the judge imposed liability on the boycotters under three distinct conspiracy theories. All three sounded in state law. The state trial court also rejected the boycotters’ argument that the First Amendment prohibited the court from imposing liability on them. The Mississippi Supreme Court affirmed the trial court’s imposition of liability.
Reversing those rulings, the Supreme Court emphasized that “while states have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case.”