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Comment by version_five | Hacker News Reader

This is much more subtle than the article makes it out to be. I don't think I understand it well enough to have a clear position, but here is what comes to mind:

They are asking that companies affirm they won't boycott Isreal (this is almost certainly why the ACLU cares, but anyway) in exchange for government contracts.

Does anybody know how the constitution applies in such situations? What comes to mind is the drug testing requirement for federal contracts. Police can't just come up and randomly drug test you, but you can agree to it in exchange for money. Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.

I understand why the newspaper doesn't sign, I probably wouldn't either. But then I wouldn't expect to get the money.

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> Why is this different? It feels like there are lots of business situations where you essentially give up a right as part of a contract.

It isn't different, in your framing, but there are lots of policy reasons why we wouldn't want the state to coerce or compel speech. Especially political speech, as the case is here. And the text of the 1st amendment and years of jurisprudence make freedom of speech different than other rights (just as 5A due process is different than other rights, etc.)

We mostly recognize that it is generally a bad thing for the government to make you say things, unless there is a very good reason to do soon (like, you must label your food products with nutrition info) [0].

To reframe, imagine the government made you sign a pledge that "Abortion is murder" or "Abortion is great, everyone should have one" instead. Or imagine a law that says "All contracts are voidable, if you (a business) and your employees and your outside contractors must not participate in a boycott of Israel." That law might reach extremely far (too far?) if the company is Walmart (~2.3 million employees) and Walmart wants to do business with your state (it does) and Walmart is asking you to sign that pledge to now do business with them.

So, the question is -- if instead of forcing you to say something, and threatening you with jail, is it okay for the state to just refuse to deal with you (as an incredibly powerful market participant). Some will say "That's pretty clever lawyering on the part of the state to do that," while others will be a little more unsettled, thinking if the state can do this, what else can they do?

[0]: https://en.wikipedia.org/wiki/Compelled_speech#Examples_curr...

I agree with you, the question I was wondering about principally was the constitutionality. Regarding your example, something very similar that's actually happening is the requirement for people applying to university faculty positions to submit a "diversity and inclusion statement" which obviously must be very clearly aligned with a particular ideology, in order to be considered. Should this be illegal? It's certainly stupid, it violates all kinds or political freedom, but then you dont have to work at a university either.

> Should this be illegal? It's certainly stupid, it violates all kinds or political freedom, but then you don't have to work at a university either.

This is a tough question because I could imagine a DEI statement that wasn't plainly stupid, and which had a strong purpose, just as easily as I could imagine one that was plainly idiotic. And university education sounds like it would be a special case as well (that is -- have all sorts of factors not present in other cases). A non-crazy DEI for a low level state prison guard? Probably nuts. For a hiring manager? Maybe less so.

> I agree with you, the question I was wondering about principally was the constitutionality.

Appreciate your inquiry, and I'm not an expert in this area of the law, but as an observer, the reach of the 1st amendment can seem sometimes crazy expansive, but I think I'm mostly glad it is?

For instance, my town had an ordinance that made panhandling at busy intersections illegal (one new way to outlaw being poor but which had a facially valid purpose -- safety). ACLU sued and said this was a limitation on the 1st amendment rights of the panhandlers and won. Took away millions in attorneys fees.

This seems like unsettled law? Hopefully a person of conscience will sue.

I'm not sure it's all that subtle. US governments generally can't use business contracts to compel speech; striking these kinds of rules down was part of tearing down midcentury patronage networks.

We never tore down patronage networks. Trickle down is essentially the same mechanics in the abstract, hidden by contemporary coded virtue signaling, and legal jargon.

Families that benefited from 50s-60s social programs legislated them away in the 80s, leverage mathematical inference to assign themselves exorbitant wealth through arbitrary valuations they decide on, buy up the most valuable assets, and pay as little as possible to us to maintain them.

Horse and Sparrow economics is from a similar era of political thought as spoils systems.

A $200k salary in the 80s had the buying power of $600k now. Past winners were not about to have their legacy deflated, so they changed the rules.

Does anybody know how the constitution applies in such situations?

Nobody does. That's the point. Circuit courts have disagreed, so the Supreme Court will define what the Constitution says.

Imagine you haven't purchased anything from Israel recently. Are you boycotting them? Presumably no, as many people will be in that situation just by coincidence. Then what does count? The reality is making a public statement saying you're boycotting Israel.

And there in lies the problem, the state is trying to punish people for making entirely legal statements they don't approve of.

> drug testing requirement for federal contracts.

You can't compare drug testing requirement with Israel case. They do drug testing because you might accidentally create a problem to the government if you are addicted or regularly take drugs: You might share confidential information, introduce bug to the system or accidentally forget to follow processes.

Where is the logic with anti-boycott rules when it comes Israel?

If it was a requirement from a private contractor that would probably be fine (and could be an exercise of the First Amendment by itself). But with government contracts it looks like the amendment should be applied here.

Say that a company is called The White Power Group and is known to spew what most would consider hate speech. They bid to provide government offices with toilet paper. Should the government be allowed to turn them down?

Yes, because at a basic level, government officials don't want money from contracts to go fund things that undermine the government itself, or the safety of its citizens.

In this case white supremacists have a long history of using violence.

Then we go down the path of deciding what hate speech legally is, what the line is before the gov't will refuse to do business with someone, etc. Not to mention the policy shifting every time POTUS switches party. What a mess.

What about Chick-Fil-A or Hobby Lobby? Hate speech? Depends on who you ask.

No. We'd define what groups are tied to domestic or foreign terrorism. For whatever reason, white power groups can't keep their hands clean of violence -- likely because violence is actually tied to their rhetoric.

If its written on the toilet paper, yes

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