There was no Constitution Minute last week because I was at a conservative conference in Michigan. While we were inside listening to the speakers, tires were slashed outside in the parking lot, cars with Trump bumper stickers being singled out. I came back from Michigan to news that Facebook banned Laura Loomer, Milo Yiannopoulos, Paul Joseph Watson, and other non-Left voices.
This is getting serious. While we are in a golden age of free speech in the courts with the Supreme Court issuing strong opinions like Citizens United and Janus, free expression in society overall is under attack like I’ve never seen before. The attacks are coming from several directions. In January, I told you about threats to free speech on college campuses; from the transgender pronoun police; from attempts to take banking services away from the NRA; from Google, YouTube, and other tech giants; and from Europe and the United Nations. [Constitution Minute, 1/27/19]
In April, I told you about Germany ratcheting up enforcement against so-called ‘hate speech’ online and new hate speech initiatives from the Attorneys General of Michigan and Minnesota that move in the same direction. [Constitution Minute, 4/14/19] The Michigan initiative includes a hate speech database to be maintained by the state civil rights agency that will collect remarks from individuals and groups for later use. This is a direct threat to free speech because hate speech, whether you like it or not, is protected under the First Amendment. Just think of the chilling effect on free expression in Michigan because now you have to worry about whether state bureaucrats will decide what you say is offensive and put you in their database.
The Michigan Attorney General’s office testified before a state legislative committee that they would not access the database in criminal hate crimes cases. But sharp legislators pointed out that enhanced hate crime penalties are a matter of proving intent and the database of prior remarks would most surely be mined for evidence of intent in criminal cases. The database will affect hate crimes cases from the charging decision all the way through to sentencing, the legislators pointed out. The fact that the Attorney General’s office would be so coy about this does not inspire confidence, especially when you consider the Attorney General herself led off her testimony with the correct but misleading statement her office did not have such a database. This was misleading because the database is at the civil rights agency, which she knows darn well. She also tried to square the circle that hate crime penalties do not punish people for what they think. Sure, and I’m the tooth fairy.
We have free speech under attack like never before and it’s metastasizing into governmental actions like the Michigan hate speech database. It’s become clear to me we’ve turned a corner in this country and our right to free expression is now in jeopardy. Therefore, I have decided to undertake a new project to push back on threats to free speech from the authoritarian Left, the Islamists, state bureaucrats with tunnel vision, and anyone else who would take away our First Amendment rights.
I will be using my Champions of the Constitution Grassroots Network to push back. We’re in 11 states and have been pushing back on attacks on the Constitution for the last year and a half. You are welcome to join. It doesn’t take a lot of time and will not pull you away from your other activist projects. I will also be collaborating with like-minded folks, for example, activists in Michigan who are trying to get their state civil rights agency brought before the same legislative committee to testify about their database.
I see that others are coming to similar conclusions, that it’s time to do something. Jenny Beth Martin of Tea Party Patriots joined more than 400 scholars, writers, and group leaders in signing a joint statement in April calling for more protection for free speech on college campuses.
I applaud this and every other effort to protect free expression in this country. We live in a time when non-Left voices are being pushed to the margins. It’s not too hard to imagine a future where the authoritarian Left attempts to seize control of the Internet and talk radio to squelch non-Left voices entirely. At that point, they will not be content with slashing tires but will progress to slashing jugular veins. If you doubt me, read the blood-soaked history of the Left and you’ll see what I’m talking about. The time to act is now.
The leading Muslim organization in Germany called on the government to appoint a Federal Commissioner to fight anti-Muslim sentiment in the country, including so-called ‘hate comments’ on the Internet. That would raise First Amendment concerns, if an Islamophobia czar were appointed in the United States, but we’re only talking about Germany - so no worries, right?
Let’s talk about two other things that happened closer to home this week. First, Democrats in Minnesota asked the legislature to appoint a statewide “Task Force on Islamophobia and Anti-Semitism” to be chaired by Keith Ellison, Minnesota’s Muslim Attorney General or someone appointed by him. Second, Michigan’s Attorney General announced plans to ramp up hate crime prosecutions there and the Civil Rights Department will be documenting hate incidents that - get this - don’t rise to the level of a crime or even a civil infraction. Michigan’s moves are based on a report from the financially self-interested and now-discredited Southern Poverty Law Center claiming to find a six percent rise in the number of hate and extremist groups in the state. Anti-sharia groups are on that list. How would you like to be in Michigan’s new hate speech database and have the government come to your door telling you that you need to get your mind right?
Michele Bachmann said she has no doubt the task force in Minnesota, if created, would recommend authoritarian measures to curb ‘hate speech’ in the state. The goal is the insertion of Islamic blasphemy law into the state code, she said. In case you don’t know, Islamic notions of blasphemy are very different from defamation law in America. In America, truth is generally a defense to a charge of defamation. But in Sharia law, blasphemy is whatever offends a Muslim. If you say, ‘Muhammad was a pedophile’, Muslims will take offense and you will have committed blasphemy, even it’s true. It’s the ultimate heckler’s veto - find one Muslim anywhere in the world who is offended by your speech and your speech is no longer protected. Also in America, under current law, hate speech is protected by the First Amendment. Adopt Sharia blasphemy law and you can pretty much say goodbye to free speech. Free speech advocates are worried that the task force will recommend legislation penalizing hate speech in Minnesota and adopting sharia speech codes for the state, pointing to probable members of the task force from CAIR, which has ties to terror, and Muslim Brotherhood front groups.
We have kind of a paradox at the moment. We’re living in a golden age of free speech, as far as court decisions go. There have been very strong First Amendment cases coming out of the Supreme Court in recent years - Citizens United and Janus, for example. At the same time, support for free expression in society overall is being attacked by Muslims, the SPLC, and others. Conservative speakers aren’t allowed on many campuses, and that’s just fine with a distressingly high percentage of college students. We either do a better job of educating people why we have the First Amendment, or we’ll have more moves like those in Michigan and Minnesota which would have government bureaucrats deciding the parameters of acceptable speech. We will have arrived in Germany, where the truth is now hate speech and can land you in jail.
Alexandria Ocasio-Cortez recently claimed the Republicans changed the Constitution to remove President Franklin Roosevelt from office. Of course, she was wrong. It’s common knowledge the 22nd Amendment was not ratified until 1951, six years after FDR died in office. My Champions of the Constitution network pushed back on AOC, as did many others.
But it got me to wondering: What is the story of the 22nd Amendment and why do we have it?
The 22nd Amendment reads, in pertinent part, “No person shall be elected to the office of the President more than twice....” FDR would not have been eligible for reelection for his third and fourth terms if the 22nd Amendment had been in effect at the time.
There are additional provisions in the 22nd Amendment dealing with unexpired terms, but the main point is that the Amendment codifies the two-term tradition set by George Washington, a tradition unbroken until FDR won a third term in 1940. Washington was rightly celebrated around the world for declining to become President-for-Life, which he easily could have done. Congress approved the 22nd Amendment in 1947 and it took effect in 1951 after it was ratified by enough states. Oklahoma and Massachusetts were the only states to reject the amendment.
The Framers wrestled with presidential term limits at the Constitutional Convention in Philadelphia in 1787. Hamilton and Madison supported lifetime appointments for presidents. Mason and others believed that was too much like a monarchy. A single 7-year term was proposed, but the Framers settled on 4-year terms with no limit on the number. Presidential term limits were proposed numerous times in the 19th Century, but none passed. Ulysses S. Grant sought a third term - nonconsecutive - in 1880 but lost the Republican nomination to James Garfield. Teddy Roosevelt and Woodrow Wilson also sought third terms, under various circumstances. FDR let himself be drafted for a third term in 1940, the widening war in Europe being his excuse. Dewey, who ran unsuccessfully against FDR in 1944, supported presidential term limits, calling unlimited presidencies “the most dangerous threat to our freedom”.
We think of term limits for president as being settled, but more than 50 resolutions to repeal the 22nd Amendment were introduced in Congress, starting just five years after it was ratified and continuing up until 2013. Harry Truman, Mitch McConnell, and Harry Reid all supported repeal. So did Ronald Reagan, who said the 22nd Amendment is antidemocratic.
The subject of reparations was back in the news recently, when presidential candidates Elizabeth Warren and Kamala Harris voiced their support for reparations for black Americans to redress the legacy of slavery. Warren would also consider reparations for American Indians. So I got to wondering whether reparations would be constitutional.
The subject comes up every few years and can be traced back to Martin Luther King’s call for reparations in 1963 which referred to General William Sherman’s order to give former slaves 40 acres and a mule after the Civil War. Sherman’s order was rescinded and land that had been distributed was taken back.
Does that mean that reparations should be made today? Lots of legal arguments stand in the way:
My concern is that reparations based on race breaches the principle of individual responsibility. I didn’t do anything to the black people I encounter in my life and I should not be made to pay just because I belong to a certain group. There are lots of white people whose ancestors weren’t even in the country in 1865. Group responsibility - otherwise known as guilt by association - is a very dangerous game, but let’s play it anyway, for a minute. Like a liberal friend of mine in Boston says, reparations - OK, but just wait for the counterclaim for making inner cities unlivable. Lots of blacks don’t cause problems or live outside of inner cities, you say? It doesn’t matter. The principle of group responsibility has been announced, so they shall pay no matter what they do or where they live. Here’s another claim on fairness - by the descendants of the 620,000 soldiers who died in the Civil War freeing the slaves. Under the principle of group responsibility, it is only fair and just that present-day blacks pay that counterclaim as well. So you see, all sorts of mischief starts when you breach the principle of individual responsibility and pit one group against another.
Let me suggest that we all find something better to do with our time.
Earlier this month, a heckler disrupted a College Republicans event at Portland State University in Oregon. The heckler walked around the room ringing a cowbell for an hour and blocked the projector for the speaker’s presentation, before leaving of his own accord. President Trump referred to this incident last Thursday when he signed an Executive Order intended to protect free speech on campus. Several students whose free expression had been infringed were at the signing ceremony, including Kaitlyn Mullen who was working a table for Turning Point USA at the University of Nebraska when school officials tried to bully her into leaving. She refused.
Under the Order, “federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish ... the First Amendment and First Amendment rights of their students, or risk losing billions and billions of ... federal taxpayer dollars,” President Trump said. “We will not stand idly by and allow public institutions to violate their students’ constitutional rights. If a college or university doesn’t allow you to speak, we will not give them money. It’s very simple,” he went on to say.
Well, it might not be that simple. Critics have pointed out several potential pitfalls. Some critics say the data show the number of incidents threatening free speech on campus is small and declining. Other critics say the Order is merely symbolic and will have no real-world effect because it only requires schools to do what they are already supposed to be doing to promote free inquiry and uphold their own stated policies about free speech. It may have been written that way because the federal government cannot place conditions on federal grants unless Congress explicitly states those conditions in a statute. As you may recall, this is what prevented the Trump administration from placing conditions on federal grants to sanctuary cities.
Others say, however, that this is federal overreach that could lead to federal micro-management of cutting edge research. Some worry that academic freedom will be politicized and compromised.
A respected group that takes scalps in campus free speech cases pointed out that it’s not clear how federal agencies will enforce the Order and enforcement actions could very well conflict with the First Amendment. This group is called the Foundation for Individual Rights in Education and is commonly known as FIRE.
Finally, a student journalist at a religious school in Ohio worries that, if future administrations continue the Order, it will be used to require the expression of ideas on campus that run counter to the teachings of religious institutions.
The Order will likely be challenged in court when schools start losing money, so stay tuned for that. Also, the Order may encourage the strengthening of campus free speech laws that have passed at the state level in recent years and, further, prompt other states to enact similar laws of their own.
When Democrats took control of the House after the last election, the question many had was whether they would focus on passing legislation or spend the next two years talking about Trump’s tax returns. The answer has become pretty clear, with the Democrats holding, announcing, or threatening hearings or investigations on Trump/Russia collusion, Trump tax returns, Trump business dealings, Trump corruption, Trump abuse of power, Trump hush money payments, Trump obstruction of justice, Trump impeachment, Trump, Trump, and more Trump.
“The Constitution ... provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt,” according to a Congressional Research Service report. But the practice was carried over from the British House of Commons whose members were considered the “grand inquisitors of the realm”. (id., p.1) Congress’ power to investigate is implied from its enumerated powers and the Necessary and Proper Clause, all found in Article 1, Section 8.
The first Congressional investigation of the executive branch appears to have been in 1791, when prior business dealings of the Superintendent of Finance Robert Morris were called into question. (id., p.2)
The Supreme Court first placed limits on congressional investigations in 1821 [Anderson v. Dunn] (id. p.4). The Court upheld Congress’ power to hold people in contempt, but said Congress must use the least onerous means to achieve its legislative objectives and no term of imprisonment Congress imposed could extend beyond a Congressional term. In 1881, the Court placed more limits, saying Congress could not inquire into the personal affairs of individuals without actual “valid legislation” in mind. (id. p.5) This was later loosened to any legislative purpose, including oversight of alleged wrong-doing in the executive branch. (id. p.5) Oversight could potentially result in legislation, so a later Court viewed it as fair game for Congressional hearings and investigation.
The Supreme Court has also upheld Congress’ power to issue subpoenas as “an indispensable ingredient of lawmaking.” (id. p.6)
Congress has expanded its powers to investigate by statute on a number of occasions, notably after 1946. Congress beefed up oversight committee staff and upgraded the Government Accountability Office - GAO. Congress now requires more than 2,000 reports from the executive branch every year.
It’s a pretty safe bet that specific constitutional issues will come up as the House Democrats’ obsession with Donald Trump plays out. Will witnesses ‘take the 5th’ like Lois Lerner did? They’re certainly entitled to. The Supreme Court ruled that “[t]he Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action” in 1957 [Watkins v. United States]. Will Trump administration officials claim executive privilege and refuse to turn over documents? That didn’t work out so well for President Nixon [United States v. Nixon, 1974]. A unanimous Supreme Court rejected his claim of executive privilege and he resigned 16 days later. I’ll keep an eye out for specific issues that come up as the Democrats move forward and report back to you when I can add to your understanding of the constitutional dimensions of what is happening.
When the civil rights movement started, it was about simple justice - affording remedies where discrimination could be proven with real evidence in individual cases. I handled such a case when I was a trial attorney - a black man was fired from a beer distributor and replaced with a white man who had previously worked there, and whose personnel file was marked ‘Do Not Rehire’. We found the proverbial smoking gun and got our client a nice settlement.
Unfortunately, civil rights moved on from there and the theories became more and more outlandish and poisonous. First came affirmative action - more discrimination to remedy previous discrimination, as in turning away Asian students from Harvard even though they are more qualified than the students of other races who are admitted. Then came structural racism - forget evidence of discriminatory intent in individual cases; we’ll just indict the whole society for being no darned good, without any evidence at all. And I’ve mentioned before Social Engineer-in-Chief former Justice Anthony Kennedy with his theories of unconscious bias which have been thoroughly debunked.
So I was glad to see that the Trump administration is considering an executive order to cut back on another overreaching civil rights theory - disparate impact, a heavy-handed approach aggressively pushed by the Obama administration. Disparate impact seeks to change outcomes in housing, hiring, consumer credit, student loans, student discipline, traffic stops, and many other domains on the basis of statistical disparities between racial groups - without any proof of discriminatory intent at all. Discrimination is considered proven if policies or practices have an unequal impact on one group versus another. Disparate impact theory is the reason landlords and employers have backed away from doing common-sense background checks on prospective tenants and employees, even though federal agencies routinely run background checks on their own hires. It’s also why mortgage lenders have gone back to making subprime loans in inner cities, to settle federal disparate impact lawsuits which have cost them billions in fines, even though federal pressure to make subprime loans was what caused the financial crisis of 2008. School violence spiked after Obama’s school discipline reforms, something that received a lot of attention at the time. Trump’s executive order, if signed, would prohibit federal agencies from using disparate impact theory in the application or enforcement of any civil rights law.
Disparate impact theory is not mandated by the Constitution. The 14th Amendment guarantees equal protection of the laws, but disparate impact theory is a concoction of bureaucrats that was adopted by the courts. Courts had to torture language in statutes to get to justify the theory. This was pointed out by the dissenters in a 2015 Supreme Court case, Texas Department of Housing v. Inclusive Communities. Justice Kennedy wrote the majority opinion extending disparate impact theory to housing, but I have to tell you it’s about the weakest opinion I’ve ever read, full of made-up stuff and make-weight arguments. Kennedy’s opinion was fundamentally dishonest, the most blatant example of results-oriented jurisprudence I’ve ever seen. Justice Thomas pointed out in dissent that the EEOC wrote openly of creatively reading disparate impact theory into statutes knowing they would get away with it because courts grant administrative agencies a great deal of deference. Justice Alito, also in dissent, illustrated the folly of disparate impact theory by relating the story of the housing authority in St. Paul which had tried to fix locks, get rid of rats, and bring about other improvements in rental properties. But this raised rents and was deemed impermissible because of the disparate impact of higher rents on minorities. Alito wrote: “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”
Once again we see liberal policies are not just wrong. They actually hurt people, and disparate impact theory is no exception. The theory turns the presumption of innocence on its head and is manifestly unjust. Not every statistical difference is about race. The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.
But disparate impact theory will be hard to uproot, spread as it is through so many agencies and areas of law. The theory is the driving force behind scores of regulations, thousands of government lawsuits, and billions of dollars in fines. Not only that, a resistance campaign is underway and lawsuits against the possible removal of disparate impact regulations have already been filed. Congressional hearings are also in the works in the Democrat-controlled House. But with changes in personnel at the Supreme Court, this will be one to watch if President Trump follows through and signs the order.
I spoke to you in January about my proposed amendment to the U.S. Constitution to allow a super-majority of state legislatures to override the Supreme Court on constitutional questions. The campaign for the amendment is now underway.
I put up a webpage and sent the link to my mailing list. I will update the page from time to time.
The webpage has my Constitution Minute from January where I lay out the problem - authoritarian top-down directives from the Supreme Court - and the solution - an amendment to put power back in the hands of We the People where it belongs.
That’s as far as I’ve gotten. Next steps include gathering allies and preparing the ground for public acceptance of the amendment.
The best thing I’ve read on the subject recently came from Daniel Horowitz in Conservative Review in September. The article is entitled “Our Founders never thought the courts had the final say — and neither should we.” The article talks about a “dictatorship of the robes” that came about when the judiciary began to assert that its rulings applied outside the judicial branch. Prior to that moment, courts may have issued opinions on constitutional questions, but they were considered binding only on other courts, not on the other branches of government. In those days, Congress and the Executive branch were active participants in interpreting the Constitution.
But now, judicial review has become judicial exclusivity, with courts having the final say on constitutional questions and issuing opinions which purport to bind the entire country, not just the parties before them or other courts. In contrast, early in our history, Horowitz writes:
Horowitz concludes by saying:
It’s often said in Tea Party circles that people get the government they deserve. If we sit back and wait for another social engineer on the Supreme Court to tell us what to do and how to be, we will deserve our fate. Or we can do something about it - join me.
Tea Partiers have long been concerned about civil asset forfeiture, the practice of police departments seizing assets from, say, drug dealers, and selling them off. Nobody likes drug dealers, so what could go wrong?
Enough for a unanimous Supreme Court to rule this last week there are constitutional limits to civil asset forfeiture. A drug dealer in Indiana pled guilty, then the state moved for forfeiture of the man’s $42,000 Land Rover SUV the police had seized earlier. The man bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The trial court observed $42,000 was four times the maximum allowable fine for the offense and denied the state’s request. The Indiana Supreme Court reversed, sending the case to the U.S. Supreme Court.
Justice Ruth Bader Ginsburg wrote the Court’s opinion. The issue was whether the prohibition against excessive fines in the Eighth Amendment of the U.S. Constitution applies to the states through what is called the incorporation doctrine. Most, but not all, federal rights have been incorporated and bar the states, not just the federal government, from infringing on those rights.
Justice Ginsburg wrote rights are not to be incorporated unless they are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Ginsburg found the principle of proportionality - that economic sanctions should be proportional to the offense - went all the way back to the Magna Carta. Proportionality also appeared many times after that, in the English Bill of Rights, laws of the American colonies, and three dozen state constitutions. She also noted excessive fines were used to keep slaves who had been freed from bondage in a state of perpetual involuntary labor. All of this was more than enough, in the Court’s view, to apply the Eighth Amendment’s prohibition against excessive fines to the states through the Due Process clause of the 14th Amendment.
Justice Thomas and Justice Gorsuch concurred in the result, but wrote separately to suggest that the proper route to the result is through the Privileges & Immunities clause, not the Due Process clause. There is quite a debate going on in conservative legal circles about the meaning of the Privileges & Immunities clause, but that’s a subject for another day.
For now, the Court’s decision curbs the abuses of civil asset forfeiture and reins in what critics have called ‘policing for profit’. Some cities were getting as much as 30 percent of their budget from the practice. Talk about gangster government, wow! Justice has been served because the financial conflict of interest has, to a large extent, been removed. Justice Ginsburg noted another abuse in her opinion - large fines can be used to chill free speech or retaliate against political enemies. The potential for that abuse in the states is much less after the Court’s decision.
However, I should note that fans of state sovereignty will not like the reasoning in this case. To the extent state sovereignty ever really existed, the incorporation doctrine is another nail in its coffin. Civil asset forfeiture, like so many other areas of the law, has now been federalized - Washington has spoken. Before this case, states were free to impose excessive fines, but not anymore. Under our system, the federal government is supposed to have limited powers and the states are supposed to have powers of their own. Tea Partiers like federalism for this reason, but our challenge is to find constructive ways to revitalize state power as a check on a central government that has been growing increasingly more powerful and less accountable over time. The result in the asset forfeiture case last week may have been correct, but the case didn’t make the task of revitalizing federalism any easier for us.
I have three items for you tonight - the green new deal, an abortion ruling, and a case about discrimination against Israel.
First, a green new deal resolution was introduced in the House this past week with 67 co-sponsors. I couldn’t find any articles analyzing the constitutionality of the resolution, which troubles me. Here you have an outlandish proposal and nobody is even asking whether it’s constitutional. When I looked over the resolution myself, I found a lot of familiar ingredients, and nothing jumped out at me as being unconstitutional, when the resolution is taken at face value. The ingredients have long been considered constitutional, things like regulating agriculture and the environment; government spending on infrastructure and public transit; and upgrading buildings. The promise to get rid of planes was widely ridiculed, but it’s from an earlier draft that talked about having so much public transit and hi-speed rail that jet travel would no longer be necessary, not taking planes by eminent domain under the 5th Amendment to the U.S. Constitution. The resolution talks about moving to 100 percent renewable energy, but government policy has long favored some forms of energy over others. The proposal is short on specifics, but it does not say that fossil fuels must be left in the ground, which would raise regulatory taking issues under the 5th Amendment. Even if regulatory taking issues come up in the implementation of the resolution, those cases are tough to make. What about guaranteeing everyone a job, whether they want to work or not? It might not be good policy, but we’ve had social programs in this country for a long time. No, the biggest constitutional objection to the green new deal I can see at present is the spirit of the thing. The massive “10-year national mobilization” would turn everything upside down and interfere with everyone’s lives. The government is not supposed to be that intrusive. It sounds more like North Korea, where people are mobilized to pick berries and nuts for Dear Leader, than America to me. We’re supposed to have limited government in this country, not massive government overreach, or mass mobilizations in peacetime whenever politicians say jump.
Second item: There was a lot of commentary this past week about Chief Justice Roberts going over to the dark side and joining the four liberals on the Supreme Court in temporarily blocking abortion restrictions from taking effect in Louisiana. The Tea Party and thus my commentaries usually stay away from social issues, but Roberts’ decision is instructive in understanding how the Supreme Court works in general. Roberts is, first and foremost, an institutionalist. He can be expected to act in what he considers to be the best interests of the Supreme Court as an institution. The Supreme Court is always reluctant to overturn precedent, and is even more reluctant to do so when the case is at an intermediate stage. The posture of the abortion case this past week was not a final ruling; it was a request for an injunction while the case proceeds below. Roberts was not going to get into whether or not to overturn Roe v. Wade or other aspects of abortion jurisprudence on an interim procedural matter. What he will do when another abortion case is finally and squarely presented is still anybody’s guess.
Finally, keep your eye on BDS. There’s a First Amendment issue that may end up in the Supreme Court. BDS is the Boycott, Divestment and Sanctions movement against Israel. This past week, a federal judge upheld an Arkansas law forbidding state agencies from dealing with companies that boycott Israel. The ACLU had argued on behalf of a newspaper that the law violates free speech, citing precedents from civil rights boycotts. The newspaper had refused to sign a pledge never to boycott Israel as demanded by a state college that was an advertiser in the paper. The court ruled that a business boycott is commercial conduct and not a speech issue at all, citing Supreme Court precedents. But courts in Kansas and Arizona have gone the other way and the issue is currently before the 9th Circuit Court of Appeals. I expect one or more of the anti-BDS cases to eventually make its way to the Supreme Court.
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