Federal Judge Says Boycotts Aren't Protected Speech

from the WTAF dept

A federal judge in Arkansas has delivered a truly WTF First Amendment decision related to a state's anti-Israel-boycott law. The law states that companies contracting with government entities cannot engage in boycotts of Israeli products or services. Those doing so are either forbidden from doing business with the state government or forced to sell their products/services at a substantial discount.

In this case, the Arkansas Times' steady business relationship with an Arkansas college has been disrupted by the Arkansas law seeking to punish businesses that engage in boycotts of Israel. Every company doing business with Arkansas government entities must sign a certification stating they are not boycotting Israel. The law has been in effect since 2017, but this year the Times refused to sign the required certification. This refusal cost the paper its advertising contract with the school, since the only other option under the boycott law was to sell its services at a mandated 20% discount.

The Times sued with the assistance of the ACLU, seeking to have this law found unconstitutional. So far, the ACLU has managed to get similar laws blocked/rewritten in two other states. The judge in this case, Brian S. Miller, even points to the ACLU's successful lawsuits, but still manages to come to the opposite -- and insane -- conclusion that participating in a boycott is not protected speech. From the order [PDF] denying the Arkansas Times' request for an injunction:

The Times is unlikely to prevail on the merits of its First Amendment claims because it has not demonstrated that a boycott of Israel, as defined by Act 710, is protected by the First Amendment. This finding diverges from decisions recently reached by two other federal district courts. Jordahl, 336 F. Supp. 3d at 1016; Koontz v. Watson, 283 F. Supp. 3d 1007, 1021–22 (D. Kan. 2018).

In Jordahl, the court had this to say about Arizona's boycott law:

A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott…

[...]

The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change."

In Koontz, the federal court similarly found Kansas' anti-boycott law unconstitutional:

[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.

None of this matters in this court, where somehow it's possible to separate the act of boycotting from the speech it represents in order to allow the government to punish companies for expressive acts.

First, a boycott is not purely speech because, after putting aside any accompanying explanatory speech, a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media.

[...]

Second, such conduct is not “inherently expressive.”

[...]

It is highly unlikely that, absent any explanatory speech, an external observer would ever notice that a contractor is engaging in a primary or secondary boycott of Israel. Very few people readily know which types of goods are Israeli, and even fewer are able to keep track of which businesses sell to Israel. Still fewer, if any, would be able to point to the fact that the absence of certain goods from a contractor’s office mean that the contractor is engaged in a boycott of Israel. See id.; c.f. FAIR, 547 U.S. at 66. Instead, an observer would simply believe that the types of products located at the contractor’s office reflect its commercial, as opposed to its political, preferences. In most, if not all cases, a contractor would have to explain to an observer that it is engaging in a boycott for the observer to have any idea that a boycott is taking place.

That's the legal standard for expressive activity in Arkansas according to Judge Miller: if observers can't tell what's happening without additional speech, the government is free to punish companies for choosing not to do business with Israel. In almost every case, though, speech will accompany this act, which means the state government can punish companies' protected speech by punishing them for the act this court believes can be separated from it.

All a decision like this does is encourage Arkansas companies to lie on their certifications. If the government wants to punish companies for lying, it will have to compel some actually protected speech from them: statements about their boycott of Israel. If no observer (and that apparently includes government entities engaging in business with private contractors) can tell a boycott is or isn't underway, then the boycott can continue with the government none the wiser -- so long as no one makes any statements about it. The government has kind of painted itself into a corner, using paint supplied by an Arkansas judge who should have done much better parsing both the law and the First Amendment.

Filed Under: 1st amendment, arkansas, bds, boycotts, free speech, israel

Human Rights Groups Plead With The EU Not To Pass Its Awful 'Terrorist Content' Regulation

from the this-will-be-a-disaster dept

While so many people have been focused on the disastrous potential of the EU's Copyright Directive, we've been mentioning lately that another EU regulation, coming up right behind it, may be much more dangerous for the internet as we know it. The EU's Terrorist Content Regulation is shaping up to be a true horror story, as we discussed in a recent podcast on the topic. As covered in that podcast, the EU is barreling forward on that regulation with little concern for the damage it will do (indeed, with little concern for showing any evidence that it's needed).

The basic idea behind the regulation is that, apparently, the internet is full of horrible "terrorist content" that is doing real damage (citation needed, but none given), and therefore, any online platform (including small ones) will be required to remove content based on the demands of basically anyone insisting they represent a government or law enforcement authority, within one hour of the report being sent, or the site will face crippling liability. On top of that, the regulation will create incentives for internet platforms to monitor all speech and proactively block lots of speech with little to no recourse. It's a really, really bad idea, and everyone is so focused elsewhere that there hasn't been that much public outcry about it.

The group WITNESS, which helps people -- be they activists or just everyday citizens -- document and record human rights violations and atrocities around the globe, has teamed up with a number of other human rights groups to warn the EU just how damaging such a regulation would be:

Our letter is based on real-world experience of exactly these problems.

In particular, as we note in the letter, Syrian Archive and WITNESS, as well as many of our partners, “have seen firsthand that use of machine-learning algorithms to detect ‘extremist content’ has created hundreds of thousands of false positives and damaged [a huge] body of human rights content.”As Jillian York of the Electronic Frontier Foundation notes, “”By placing the burden on companies to make rapid decisions in order to avoid penalties, this regulation will undoubtedly result in censorship of legitimate speech. That includes content essential “for prosecutions or other accountability processes across borders or in conflict situations.” The proposal ignores the incredible work of human rights defenders and journalists who “risk their freedom, safety, and sometimes even their lives to upload videos for the purpose of exposing abuses to the world. Without this documentation, we would have little idea what is happening in Syria, Yemen, Myanmar, the favelas of Brazil, and elsewhere.” 

Indeed, as we've documented, attempts by digital platforms to block "terrorist content" in the past has resulted in the blockade of activists documenting war crimes. No one pushing for these laws has yet explained how one can distinguish "terrorist content" with "documenting war crimes," -- and that's because those two are often the exact same thing, even if used for a different purpose. But any law that requires technology filters to "block" such content will simply not be able to comprehend the difference.

The letter also highlights how -- as we saw with Russia copying Germany's anti-"hate speech" law -- authoritarian regimes will use these kinds of laws to justify "similar" laws that are actually used to suppress dissent:

In addition to devastating the processes being used to create and preserve human rights content, this regulation will harm some of the most vulnerable groups in the world by inspiring dangerous copycat regulation that will be used to silence essential voices of dissent. This is not hypothetical, as Germany’s NetzDG law is already inspiring replicas in authoritarian countries, including Russia. The impact of the European Union on global norms should be a net positive, especially in the face of a rising tide of political repression, violence and fascism. This regulation hinders efforts to fight that tide.

One hopes that EU regulators can understand this and back away from this disaster of a proposal, but the recent record of the EU and legislation regarding the internet does not suggest we have much to be hopeful about.

Filed Under: censorship, eu, free speech, human rights, intermediary liability, terorrist content, terrorist content regulation