While businesses DO NOT have the right to refuse service to consumers because of who they are, consumers DO have a First Amendment right to withhold their patronage to express their political beliefs.
By Brian Hauss | If Americans Knew | Feb 24, 2019
To be clear: Anti-BDS laws are not designed to prevent discrimination. In fact, they’re designed to discriminate against disfavored political expression, which is why two federal courts and several prominent First Amendment scholars have agreed that these laws violate the First Amendment.
A number of states recently passed laws that require state contractors — including teachers, lawyers, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in politically motivated boycotts against Israel. Dozens of states have considered such “anti-BDS” laws, and a bipartisan group of 73 senators recently passed a bill — the Combating BDS Act — that would encourage states to adopt such laws.
The ACLU takes no position on boycotts of Israel or any foreign country, but we have long defended the right to boycott, which is protected under the First Amendment. That’s why we challenged anti-boycott laws in Kansas, Arizona, Arkansas, and Texas, and strongly opposed the Combating BDS Act in Congress.
Taking issue with our defense of the right to boycott, critics have accused us of hypocrisy for fighting laws that prohibit contractors from boycotting Israel while also supporting anti-discrimination laws that require businesses to serve the public. Anti-BDS laws, they argue, are also designed to prevent discrimination. . . .
As professor and former ACLU staffer Amanda Shanor explains in a recent post, anti-BDS laws and anti-discrimination laws are nothing alike. The argument that anti-BDS laws serve a similar function as anti-discrimination laws demonstrates a flawed understanding of anti-discrimination laws. Such laws prohibit businesses from discriminating against customers and employees based on who people are — such as their sex, race, and religion.