ACLU: Ignorant or dishonest?

The American Civil Liberties Union bills itself as the “premier defender of the rights enshrined in the U.S. Constitution.”  One would certainly expect, if an organization is truly the premier defender of constitutional rights, it would have a comprehensive understanding of what those rights are.  However, the ACLU asserts that laws that prohibit U.S. companies from participating in the “Boycott, Divestment, Sanctions” movement against Israel–“anti-BDS laws” — violate the First Amendment right of free speech. No matter how loudly it trumpets its self-assigned status as “premier defender,” the ACLU’s stance on anti-BDS laws reveals that the organization is either woefully ignorant of the scope of the First Amendment, or is intentionally misleading the public as to that scope.

The ACLU’s most recent pronouncements on anti-BDS laws came in response to an op-ed written by Eugene Kontorovich, a law professor, published in the Wall Street Journal on February 11.  In his op-ed, titled “For the ACLU, Antipathy to Israel Trumps Antidiscrimination,” Mr. Kontorovich demonstrates that, if the ACLU is correct that anti-BDS laws violate the First Amendment, then equally unconstitutional, for the very same reason, are all our federal and state civil rights or antidiscrimination laws that bar discrimination against racial minorities, ethnic and religious groups, particular sexes, etc., in housing and employment.  Those laws, too, could be perceived as penalizing U.S. persons and entities who wish to express disapproval of a targeted group.  But no serious person believes that civil rights laws violate the First Amendment, because there is a difference between penalizing speech and penalizing action.

The civil rights laws penalize a person who refuses to enter into a commercial transaction with another person because of the latter’s race, religion, ethnicity, sex, or etc.  Refusing to enter into a transaction is an act; it is not speech.  Nothing in the civil rights laws prevents me from saying anything I want, however nasty, hateful or bigoted, about any minority group.  Those laws simply prevent me from acting in a certain way–that is, refusing to transact business with members of certain specified groups–if my action is motivated by bigotry or hatred against that group.

The anti-BDS laws that the ACLU opposes must be accorded the same analysis under the First Amendment.  Anti-BDS laws do not prohibit any U.S. person from saying anything at all, no matter how ill-informed, negative or bigoted, against Israel.  Israel can be likened to Nazi Germany and so on, and the anti-BDS laws would not be violated.  Like the civil rights laws, the anti-BDS laws are violated only if a U.S. person refuses to enter into a transaction (with an Israeli company) with the motive of complying with the BDS call for a boycott of Israel.

In response to Mr. Kontorovich’s op-ed, the national legal director of the ACLU, Mr. David Cole, published a letter to the editor ostensibly refuting Mr. Kontorovich’s argument.  Here, in its entirety, is the nub of Mr. Cole’s argument:

Antidiscrimination laws prohibit businesses from discriminating against customers and employees based on who people are—such as their race, sex and religion—not because of what they say. Anti-BDS laws, by contrast, target boycotts of companies supporting the Israeli government (and not Russia or all foreign governments) because the government disapproves of the message the boycott sends. As two federal courts recently ruled, such laws violate the First Amendment by restricting disfavored political expression.

The difference that Mr. Cole professes to discern — antidiscrimination laws prohibit discrimination based solely on the identity of the target of the discrimination, while anti-BDS laws prohibit boycotts based on what is said about the target of the boycott — is entirely imaginary. There is no such difference.

One would expect that Mr. Cole knows that if, for example, a landlord refuses to rent to a prospective Muslim tenant, the refusal does not necessarily constitute unlawful discrimination.  Whether the refusal is unlawful depends entirely on the reason why the landlord refused.  If, say, the landlord refused only because the prospective tenant was unable to post the standard security deposit that the landlord demands of all tenants, then no unlawful discrimination occurred.

How would one determine the landlord’s reason for refusing to rent?  At a trial, the finder of fact would consider evidence regarding reason or motive, and that would consist primarily of things the landlord had said (or not said) about Muslims.  If, for example, the landlord had told his office manager, “Never rent to a Muslim family,” that would be practically incontrovertible evidence of a violation.  If he had never made any such comment to his office manager or anyone else, and if he insisted in every case that the security deposit be paid up front, and if he had in the past rented to other Muslims who were able to post the security deposit, all that would constitute practically incontrovertible evidence that no violation had occurred.  It all depends on the evidence, including evidence of what the defendant-landlord has said relevant to the refusal.

Mr. Cole therefore is entirely incorrect in stating that, in the anti-BDS case, what one says about the target matters, while in the civil rights case, what one says about the target is irrelevant.  The truth is that what the defendant says about the target is relevant in both cases.  One cannot violate the civil rights laws unless one refuses to enter into a transaction because one is bigoted against the target of the discrimination; relevant evidence of bigotry will include what one has said about that target.  Similarly, one cannot violate an anti-BDS law unless one refuses to enter into a transaction because one wishes to express disapproval, hatred, etc. of Israel.  Again, relevant evidence of such disapproval or hatred will be what one has said about Israel.  The First Amendment implications of both cases are identical.

So, is the ACLU woefully ignorant or intellectually dishonest?  You decide.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2523973
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