The ACLU of Iowa opposes two bills that would forbid state government from doing business with companies that boycott Israel.
February 24, 2016
State government may not penalize businesses that choose to boycott. Boycotts are an important form of free speech protected by the First Amendment. Boycotts allow people to make their views known in a powerful way when individually their voices would be faint or lost.
"If the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited."
For this reason, the ACLU of Iowa opposes both SF2281 and HF 2331. Senate File 2281 would prohibit Iowa government agencies and retirement systems from entering into contracts with businesses that boycott Israel. House File 2331 contains similar legislation and two days ago passed in the Iowa House. These bills are unconstitutional and should not be enacted into law.
Our concern is not with the fact that the boycott is targeted at Israel. Regardless of the country involved, the ACLU would object to government penalizing businesses and the individuals that run them from expressing free speech.
As the U.S. Supreme Court has held, speech in support of a boycott encompasses the practice of people sharing common views banding together to achieve a common end, a practice deeply embedded in the American political process. Through this collective effort, individuals can make their views known.
One important case is NAACP v. Claiborne Hardware Co., which held that economic boycotts are protected speech.
In addition, the Supreme Court has also held that government cannot punish its contractors based on their political beliefs, associations, and activities, as in O’Hare Truck Service v. City of Northlake. In that, the Supreme Court held that a city violated the First Amendment by firing a contractor in retaliation for its refusal to support one candidate and its support instead for another candidate. The Supreme Court explained: “If the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to produce a result which it could not command directly. Such interference with constitutional rights is impermissible.”