About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

50 Tex. Tech L. Rev. 207 (2017-2018)
Stop Defending Discrimination: Anti-Boycott, Divestment, and Sanctions' Statutes Are Fully Constitutional

handle is hein.journals/text50 and id is 231 raw text is: STOP DEFENDING DISCRIMINATION: ANTI-BOYCOTT, DIVESTMENT, AND SANCTIONS* STATUTES ARE FULLY CONSTITUTIONAL Mark Goldfeder** I. INTRODUCTION ......................................... 207 II. THE UNITED STATES' POSITION ON BDS .......................... 210 A. Federal Approach .......................... ....... 210 B. The State Response to BDS. ................... ....... 213 C. South Carolina's Anti-BDS Statute............ ......... 216 M. ANTI-BDS LEGISLATION IS CONSTITUTIONAL ................. 218 A. Anti-BDS Laws Affect Only Government Speech ..... ...... 218 B. BDS Activity Is Not Protected Speech.......... ......... 221 1. The BDS Movement Does Not Function as a Primary Boycott...................................... 223 2. Longshoremen Rules ................................ 228 IV. RESPONDING TO ADDITIONAL CLAIMS .............. ......... 231 A. BDS Boycotts Are Not Protected under the First Amendment..... 231 1. The Government Can Make Conditions on Contracts........... 238 2. Federal Anti-Boycotting Statutes .............. ..... 245 V. CONCLUSION .......................................... 247 I. INTRODUCTION The Boycott, Divestment, and Sanctions (BDS) Movement operates as a coordinated and sophisticated effort to disrupt the economic and financial stability of the State of Israel.' It also attempts to cause direct harm to the economic interests of persons conducting business in and with Israel,2 or with * Boycott, Divestment, and Sanctions (BDS). ** Dr. Mark Goldfeder, Esq. is Senior Lecturer at Emory Law School, Spruill Family Senior Fellow at the Center for the Study of Law and Religion, and Director of Emory University's Restoring Religious Freedom Project. The Author wishes to thank Kurtis Anderson, Karlo Bazdan, Keisha Russell, Amin Sadri, Anton Sorkin, and Pete Wosnik for their research and assistance. A special thank you to Samuel Feldman for spearheading the project. 1. See OMAR BARGHOUTI, BOYCOTT, DIVESTMENT, SANCTIONS: THE GLOBAL STRUGGLE FOR PALESTINIAN RIGHTS 223 (2011); see also Bob Unruh, Hate-Israel Movement Flames Out as Investments Rise, WND (June 4, 2016), http://www.wnd.com/2016/06/hate-israel-movement-flames-out-as- investments-rise/324754/#1. 2. YASMEEN ABU-LABAN ET AL., APARTHEID IN PALESTINE: HARD LAWS AND HARDER EXPERIENCES 100 (Ghada Ageel ed. 2016) [hereinafter APARTHEID IN PALESTINE]. 207

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most