A staff editorial is typically understood to reflect the opinion of the entire newspaper. Yet this particular editorial by the LA Times strikes me as a group of journalists drawing legal conclusions without using any actual legal knowledge.
This is not a question of personal opinion, rather it is a question of what the Constitution actually says, and how the United States Supreme Court has interpreted it over the years.
The LA Times is concerned with a bill working its way through the California legislature that touches on the discriminatory nature of boycotting Israel. Though it doesn’t mention the bill by name, the editorial would be referring to AB-2844.
HonestReporting recently examined a similar issue: New York’s Executive Order 157 in which Governor Cuomo determined that, “If you boycott against Israel, New York will boycott you.”
To be clear, Governor Cuomo’s executive order does not prohibit free speech, nor even boycotts, but merely determines that the state of New York will not do business with parties who boycott Israel. How hypocritical can the Israel boycotters get? They are basically saying that their boycott is a legitimate means of expression, but it is illegal for someone else to boycott them in return.
I am signing an Executive Order that says very clearly we are against the BDS movement. If you boycott Israel, New York will boycott you.
— Andrew Cuomo (@NYGovCuomo) June 5, 2016
By contrast, in effect AB-2844 does not even boycott the boycotters.
In fact, in its current form the bill has no enforcement mechanism at all but is primarily symbolic, which calls into question why the LA Times felt the need to even write this editorial.
Nonetheless, there is a deeper legal question at play that deserves attention: is a boycott actually constitutionally protected free speech?
It is not.
This truth may come as a surprise to some, but to understand the actual nature of a “boycott” requires more than a knee jerk opinion. It demands robust legal analysis.
In a nutshell: the First Amendment to the United States Constitution protects speech but not conduct, and a boycott most certainly involves conduct.
HonestReporting took an in-depth look at the United States Constitution, the relevant Supreme Court decisions, and the role of the U.S. Office of Anti-Boycott Compliance, which enforces America’s numerous anti-boycott laws. Though this analysis is a bit technical, it is worthwhile reading for anyone who wishes to truly understand what a boycott is, and how it is actually viewed under the United States Constitution.
Prominent legal scholar and Northwestern University Professor Eugene Kontorovich weighed in on the topic, explaining that “Boycotting Israel Isn’t Free Speech.”
This LA Times editorial is not written as a proper legal analysis, but merely as a personal opinion on the law.
And it’s just plain wrong.
Featured image: CC BY-NC Jim;