http://kolhabirah.com/index.php/israel-global/1768-why-prohibiting-boycotts-of-israe
The American Civil Liberties Union (ACLU) is campaigning against existing and proposed federal and local laws that would deter boycotts of Israel popularized by the boycott, divestment, and sanctions movement (BDS). Their argument is that requiring all businesses who want to contract with the state to certify that they do not engage in a boycott of Israel violates the free speech clause of the First Amendment of the Bill of Rights.
The ACLU’s challenge of such a law in Arizona is now before the Court of Appeals for the Ninth Circuit. The Brandeis Center, of which I am president, has filed a friend-of-the-court brief supporting the constitutionality of Arizona’s law; the brief was written largely by Akiva Shapiro, a partner in the New York office of Gibson, Dunn & Crutcher, and this op-ed borrows liberally from that brief.
Federal, state, and local governments across the United States regularly and appropriately use conditions in government contracts to promote equality under the law, combat discrimination, and ensure that public funds are not used for illegal or invidious purposes. Conditions on contracting are a pillar of anti-discrimination laws at all levels of government. The First Amendment does not require the government to subsidize discriminatory conduct.
However, these regulations only target discriminatory conduct, not speech,by state contractors. Contractors may speak passionately, associate, and advocate openly in any forum and on any subject, even an anti-Israel boycott. They may also forego state contracts if they choose to engage in an active boycott of Israel.
The Arizona legislature found “Companies that refuse to deal with United States trade partners such as Israel, or entities that do business with or in such countries, make discriminatory decisions on the basis of national origin that impair those companies’ commercial soundness.” Arizona joined 25 other states that have imposed similar conditions on those seeking government contracts. A majority of these states require contractors to certify their compliance. The federal government places similar anti-discrimination conditions on funding public and private universities.