Federal judge upholds anti-BDS law in Arkansas, says it has nothing to do with the First Amendment. He's right.

From AP:

A federal judge on Wednesday let stand an Arkansas law requiring state contractors to pledge not to boycott Israel, ruling that such a boycott is not protected by the First Amendment.

U.S. District Judge Brian Miller dismissed the lawsuit the Arkansas Times had filed challenging the 2017 law. The newspaper had asked the judge to block the law, which requires contractors with the state to reduce their fees by 20 percent if they don't sign the pledge.

The Times' lawsuit said the University of Arkansas Pulaski Technical College refused to contract for advertising with the newspaper unless the Arkansas Times signed the pledge. The paper isn't engaged in a boycott against Israel.

Miller wrote that refusing to purchase items isn't protected speech. He noted that the Times wouldn't be barred from other protected forms of speech, including writing or picketing against Israel policies.

"It may even call upon others to boycott Israel, write in support of such boycotts, and engage in picketing and pamphleteering to that effect. This does not mean, however, that its decision to refuse to deal, or to refrain from purchasing certain goods, is protected by the First Amendment," Miller wrote.

Arkansas' law is similar to restrictions enacted in other states that have been challenged. The measures are aimed at a movement protesting Israel's policies toward Palestinians. A federal judge in September blocked Arizona from enforcing a similar measure. A federal judge also blocked Kansas from enforcing its anti-boycott measure, but lawmakers rewrote the measure so that it no longer applied to individuals and nonprofits and only applied to state contracts worth $100,000 or more. Arkansas' law applies to contracts worth $1,000 or more.

The judge is correct. Boycotts aren't speech - they are actions, which are not protected by the First Amendment. 

And they are discriminatory actions. If boycotting Israel is considered free speech, then so should boycotting African American businesses, or women-owned businesses.

The ACLU disagrees:

"We disagree with the district court's decision, which contradicts two recent federal court decisions and which would radically limit the First Amendment right to boycott," said Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, which represented the Times.

Yet the argument that refusing to do business with a specific group is not considered a First Amendment issue was given by none other than the ACLU themselves, which wrote in another case:

We filed our brief to explain why the First Amendment does not give a commercial business license to offer services to the general public and then – in violation of a state’s public accommodation law – refuse to provide photography services to particular customers based on their race, sex, religion, sexual orientation, age, disability, or any other characteristic. Under Elane Photography’s proposal, customers could walk into the photography studio at Sears or JCPenny for a family portrait and be told they cannot have their picture taken because they are a Latino family, or a Jewish family, or a family with a child who has Down Syndrome. A photography studio could tell an interracial family that taking their portrait would create expression celebrating their interracial relationship and that it would violate the studio’s First Amendment rights to participate in that expression.

I see no First Amendment difference between a "boycott" by a business of gay customers, as the Elane Photography case was, and a refusal to do business with Israeli-linked people or companies. In neither case is the issue free speech, as the ACLU says explicitly. 

Refusing to accommodate a gay couple on religious grounds may be a different story, because then there is a case of two differing sets of rights that contradict each other and those cases need to be decided by a judge to determine whose rights are more important under the law. But in this case, it is clear that boycotting itself is not considered free speech, even when the boycott is done through a medium of expression such as, as the ACLU letter notes, "countless other businesses that use words, pictures, or other forms of creative expression, including court reporting services, translation services, graphic-design agencies, architecture firms, sound technicians, print shops, and dance studios, almost any good or service involving computer code, makeup artists, hair stylists, florists, and countless other services."

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