Has Gov. Bevin violated the First Amendment?

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Engraving of the First Amendment (photo by Zakarie Faibis [CC BY-SA 4.0] via Wikimedia Commons)
Engraving of the First Amendment (photo by Zakarie Faibis [CC BY-SA 4.0] via Wikimedia Commons)

In November of 2018, Governor Matt Bevin signed an executive order “prohibiting state contracts with companies that participate in boycott, divestment, and sanction (BDS) practices against Israel.” It was similar to the actions taken by other states, including Arizona. And just this week, the U.S. Senate passed a bill encouraging states to put anti-BDS policies in place similar to the one Kentucky has enacted.

However, when the bill was debated in the Senate, Kentucky Senator Rand Paul argued against it, stating that it violated free speech rights. And in the end, Paul and 22 Democrats voted against the bill.

Now, a lawsuit filed against the Arizona law has raised the question further, with both the ACLU and the Knight First Amendment Institute at Columbia University arguing that the state laws are unconstitutional, because they target both the free speech rights and free association rights of companies that engage in boycotts.

As noted in this Bloomberg Opinion piece,

There is, however, a powerful constitutional argument to be made that the state laws violate free speech. The right to boycott is a form of free speech and free association that has been specifically protected by the Supreme Court in a 1982 case called NAACP v. Claiborne Hardware.

A friend of the court brief recently filed in the U.S. Court of Appeals for the 9th Circuit on behalf of a group of preeminent First Amendment scholars argues that it is “easy” to determine that the anti-BDS laws are unconstitutional: because the laws target specific expressive activity based on its content.

That brief, filed in January of this year, goes into more detail on the precedent noted above. In the opening paragraph of the brief, it states:

This is an easy First Amendment case. The State has enacted a law designed to silence a particular political viewpoint expressed through a consumer boycott. In its landmark ruling in N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Supreme Court recognized the expressive character of political boycotts by consumers, and it held unconstitutional a damages award against the NAACP for its role in organizing such a boycott of white merchants in Claiborne County, Mississippi. The holding of Claiborne clearly applies to the facts of this case and requires that the State defend its anti-boycott law against First Amendment scrutiny. Under even the less stringent standard of review articulated by the Supreme Court in United States v. O’Brien, 391 U.S. 367 (1968), the law is unconstitutional.

At this point, no one in Kentucky has brought suit, challenging Gov. Bevin’s actions. If they do, the state government may find that the First Amendment overrides Gov. Bevin’s executive order, and that choosing vendors based on their political stances may not pass muster in the courts.

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