In response to Abby Martin’s claim of victory, a scholar of law and religion and comparative Jewish Law, Dr. Mark Goldfeder, gives his opinion.
“A majority of states have adopted bills that say people who do business with them must abide by their policies related to fair business practices, including anti-discrimination rules. One motivation was the rise of the antisemitic boycott, divestment, and sanctions movement — a coordinated effort to disrupt the economic stability of the state of Israel, persons conducting business with Israel, and individuals the movement deems too closely affiliated with Israel.”
“Georgia passed such a law, which last week became the subject of a federal court ruling in Martin v. Wrigley. But the details of this case have been widely misreported. No, the decision did not strike the law down as unconstitutional. Rather, the court declined to dismiss the case outright, reasoning that, if all disputed facts are construed most favorably toward the plaintiff, then there were “enough facts to state a claim to relief that is plausible on its face.””
“None of the various states’ “anti-BDS” laws ban or punish speech that is critical of Israel, target advocacy for Palestinian rights, or stop anyone from boycotting Israel. They simply say that if you boycott Israel in a discriminatory manner, the state can choose not to do business with you.”
“The law in question only affects discriminatory commercial conduct, which can only be proven when it is stated explicitly by the discriminator. So, for example, when someone advertises to the public that their commercial conduct is intentionally discriminatory, it can and should be regulated by anti-discrimination laws.”
“This procedural decision in Martin, although it allows this case to move forward, at least upholds the underlying principle that commercial buying decisions are not inherently expressive and therefore not always protected by the First Amendment. That alone should confirm the constitutionality of anti-BDS laws across the country. And although the court kept this case alive by forcing an ambiguous reading on to a subsection of the law, the statute’s provisions are severable. At worst, legislators may have to amend the definition section to make clear what they intended to forbid in the first place.”
“But Georgia may yet prevail on the merits anyway because the court made crucial errors in failing to dismiss this case. Even taking the facts in a light most favorable to the plaintiff, it should not have ignored the bedrock doctrine of constitutional avoidance, which holds that if there is more than one possible reading, the court should adopt the one that makes the statute constitutional. Moreover, based on other long-standing principles of statutory interpretation, the term “other actions” in the law should have been read to include only conduct similar in kind to the terms that precede it in the law — that is, nonexpressive commercial activities.”
“In short, reports of the Georgia bill’s death have been greatly exaggerated. Legislatures around the country can rest assured that their anti-BDS bills are constitutional.”
Read more: Yes, Georgia’s anti-BDS law is constitutional
2021-week23
