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Boycotting Israel Isn't Free Speech
(New York Daily News) Eugene Kontorovich - New York Gov. Cuomo's recent executive order requiring state agencies to divest from companies that boycott Israel has led boycott proponents to claim he's violating the First Amendment, which safeguards free expression, and particularly political speech. But there is no free speech problem here. States have a right to refuse to spend their money on what they view as bigoted or improper conduct. The First Amendment protects speech, not conduct. The Supreme Court unanimously held, in Rumsfeld vs. FAIR, that the government can deny federal funding to universities that boycott military recruiters. Companies may boycott Israel to prevent further harassment from the BDS movement, to curry favor with Arab states or out of mere anti-Semitism. Those actions have no message. That is why refusals to do business are not speech. Federal law already bans participation in certain kinds of boycotts of Israel - those sponsored by foreign countries - and no one has ever doubted the constitutionality of these measures. Israel boycotts - which target all businesses from a particular country - have the key hallmark of impermissible discrimination: They cut off business to people and companies not because of their own particular conduct, but on the basis of who they are. Boycott activists claim they merely object to Israeli government policies. But it is not the Israeli government targeted by boycotts, but those with some Israeli connection. The writer is a professor at Northwestern University School of Law.