the boycott of apartheid south africa consumer boycotts have been deeply embedded in american politics include more hardware the us supreme court unanimously held that the st amendment protects the right to participate in these boycotts so that wasn't a that boycott and my question is does your client have similar elements that are evident in this case well i think the question in this case because it's primarily a facial challenge to the israel and to boycott certification form is whether the act targeted at israel and there's no dispute that those are politically motivated consumer boycotts and that's exactly what this act regulates now in clayborn hardware the supreme court specifically said that the act of withholding patronage from the boycott it stores was constitutionally protected activity it held that charles evers the boycott leader could not be held liable for speeches in support of the boycott his participation at the meetings or his active participation in the boycott itself and the supreme court recognized that the power of the government to regulate economic activity could not justify a complete suppression of a nonviolent politically motivated boycott and that's essentially the power that the government is claiming here in us the power that the district court's decision effectively gives well the statement that you seized on the language that followed which says and to effectuate rights guaranteed by the constitution itself so the district course seemed to feel that that phrase had some significance to it that we had to be talking about  under protection on that it said that the right was a form of expression public essentially a form of political expression with the other supreme court cases tell us for example in blues the government was trying to regulate picketing on foreign embassies and the supreme court said that picketing a foreign embassies is core political speech still protest of foreign governments is just as much for political speech as protests of domestic governments and so the question of whether the boycott is seeking to vindicate domestic legal rights was not i think the core issue in clay when the question was whether it was a form of political expression and protest of foreign governments human rights protests of foreign governments are i think a core form of political expression and similarly in beverly hills land it wasn't a boycott seeking to  effectuate a right to petition against governmental entities it was a boycott on target grocery store for its unfair labor practices and with this court recognized site in cleveland specifically is that playboy recognized that politically motivated consumer boycotts are entitled to constitutional protection and so i think the distinction there between a boycott of focusing on civil rights versus a boycott focusing on other forms of political speech all of those are protected with the st one that recognizes and i think the supreme court said this is mostly is that there's is an equal playing field when it comes to the field of ideas and we don't distinguish between one kind of political speech and another kind of political speech and there's a good reason for that is partly because you know whether we recognize a boycott as advancing noble ends is going to depend on the point and we don't want courts deciding which what class are noble and which what costs aren't instead we look and say is the boycott a form of political expression or is it trying to advance some sort of economic self interest and that's really the line the supreme court drew in severe trial lawyers does it matter that in claiborne it was a matter of liability and here it's a matter of just well you can't engage in this state contract if you engage in this kind of conduct is that distinction something that we need to how the district court read the statute i don't think the statute is just a limit to that and actually if you look at the legislative findings in the statute one of the things the government sites in support of the act is a congressional policy i actually think it came from a bill out of natural statute basically saying it wanted but let's let's say that it is just as to the conduct of refusing to engage in and business relations with israel what how how do you how is that the boycott how do you become how does the conduct of refusing to deal be a boycott standing by itself without the speech so your honor i think it's important when we talk about a boy make i guess the focus of the point what if the statute just said you can't refuse to deal with israel in business relations i still think that at the very least there would be as supporting the boycott is really not helpful at the core element of a boycott is the concerted refusal to deal that's what the supreme court in claiborne called the constitutionally protected assembly as opposed to the awful conspiracy and so if the government is targeting the co facial challenge here i believe we are making both your honor and one of the one of the arguments that's made is that if you engage in a boycott but nobody knows you're boycotting what's the point doesn't there have to be an espresso a component of it if i buy a printer from i don't know what he would packers competitors you may not know it's because i'm boycotting israel that may only because i think that's a better printer or the cost is better for whatever reason doesn't there have to be an expressive component for it to be a real boycott well your honor i think in this respect boycotts are like parades but the core element of a parade or a protest march is walking down the street and it zoom in and you just look at walking down the street you say well they're just walking down the street with expressive about that but then if you zoom out and say well they're walking down a street with a one thousand other people and those people are carrying signs and banners and they're chanting slogans and not becomes expressive but i don't think that's a good analogy quite frankly because you're talking about doing it with a one thousand other people that is expressive conduct you're marching here chanting you're doing something but if you just don't buy a product because it's made in israel but don't tell anybody that's the reason you're not buying the product what's the point of the boycott at that point well i think in this context of the point is that the people who aren't buying these products are telling people that's why they're doing and they are doing it as part of a highly organized the one the chief drafter of the bill basically said our goal here is to target the boycott divestment sanctions movement and so that is what the statute seeking to regulate now it's true that our client does not currently have plans to boycott israel but it doesn't want to surrender  its st amendment rights to participate in a boycott and then just as i think you don't have to be economists to an object to an anti communist certification you don't have to be a e d s participant to see the st amendment problem to object on st amendment grounds to be forced to disavow the right to boycott from certain companies well i'm accused of doing that because i'm trying to boycott israel now i really like this other computer printer that or was this fleshed out at the district court on how that would even be contractors who participate in what types of companies that operate in israel or in territories controlled by israel meaning the israeli settlements they are effectively gauging in a form of national origin discrimination so i think what it means is if you're refusing to buy from these companies israeli company because it's more expensive than another one the size doesn't compel them to buy the israeli printer with this that it says if you're refusing to buy the printer because the company operates in connection with the israeli government or operates in the israeli settlements or operates in israel rochelle versus fair in this report there says she justice roberts says that often it's going to be the case that people want to express a message by engaging in conduct that's not ordinarily expressive and the fact that the conduct requires fact even in rumsfeld itself the court said alternatively this can that the you know the government's statute here can survive o'brian scrutiny and because there is a compelling government interest unrelated to free expression the interest in raising and supporting the arguments but i don't think hardware which directly concerned a nonviolent politically motivated boycott and that's exactly what we have here if the court is not for the questions i reserve my time morning your honour's may please the court my name is nicholas brawny i'm the solicitor general of arkansas and i'm here on behalf of the defendants your honor so the district court below correctly concluded that refusing to buy or sell goods or services based on national origin neither speech nor inherently expressive that's true whether the the refusal is motivated by politics or prejudice whether it's individual or collective and whether it's called a boycott or it's called something else well why does the state use the term boycott when statute could simply read as you introduced your argument here today why use the word boycott that doesn't seem to pull in a lot of expressive conduct as claiborne has described i think your honour's right is that it could have been drafted somewhat differently but i think the fact that the statute defines boycott is a refusal to deal resolve that issue i think merely using the term boycott without defining it really doesn't show very much and i think  counsel reliance on the term boycott in order to just assert that everything is protected is really sort of a stretch of an argument when the state very narrowly defined what's prohibited here is the refusal to deal essentially based on national origin how do you interpret the or other words in it and obviously if your honour's believe that could be a problem the canon of constitutional avoidance of the district court pointed out would would avoid any speech limitations but i think you could be fairly read though to prohibit advocating  well and you know to use the example of your pointed it if you wanted to pick a best buy an advocate that people not buy you a packard printer because of their connection with the israeli military i think that that's arguably within the other action section of the statute i would respectfully disagree your honor i don't think that that's covered by the statute the the position of the state of arkansas in the way that the district court interpreted that is it doesn't cover speech it doesn't cover traditional advocacy and again the statute is directly aimed at conduct i would actually go so far as to say your honor if if if they if for some reason the arkansas times did decide to participate in the boycott or suddenly decided to advocate boycotting they could they're free to run an ad or an article longside each and every advertisement for plastic tech arguing for a boycott of israel arguing for the merits of discrimination based on national origin calling for the repeal of arkansas laws they've done multiple times here it's simply not covered by the statute and not the view of the state of arkansas that it would be covered by the statute instead what we have here is an ordinary refusal to deal we have ordinary commercial conduct so we really have what was at issue in fair a simple refusal to deal and it's of itself is not inherently expressive instead you require speech in order to explain it to understand it's judge and lawyers going out to understand whether or not this is meant to be expressive or to understand that they are intending to communicate something we all engage in ordinary commercial transactions on a daily basis we engage probably in hundreds of them on a monthly basis we make decisions about what to buy or what not to buy nobody is going to believe that those transactions are intended to convey a message absent each motivated they wanted to express their opposition to the military's employment policies but that that was the law school this is arguably at least from the legislative history an entire movement a boycott that  much bigger than just arkansas times or even arkansas so isn't that a distinguishing feature that there are aspects of this boycott that are bigger broader and more expressive than in fair that sort of i guess there are two responses to that one your honor the boycott unfair was certainly part of the movement as well it was a movement that involved virtually every law school in the country right wanting to express their opposition to the military's don't ask don't tell policy also part of a general movement to oppose those policies and to get the military to repeal it nd to the extent that there's other stuff involved here other than just the refusal to the boycott movement generally involves things other than just a refusal to deal with those things are often to or mostly protected and we have to talk about specific examples but again the advocacy opposing israel opposing expressing hostility toward israelis arguing for the merits of discrimination based on national origin those things those traditional speech elements are protected and that that's really that distinguishes this case or put this case sort of like clay born in the sense that clay moore and also distinguish those elements claymore didn't hold that the boycott entirely everything that involved was protected by the they can't point to a single pathogen clayborne that says a refusal to deal is protected by the st amendment and that makes sense because the mississippi state courts had concluded that as a matter of state law in that case that route voluntary withholding not justify a complete probation against a nonviolent politically motivated boycott designed to force government governmental and economic change mizzen that exactly what the boycott of israel is intended to do to force government in economic change i think your honor it it it has it has that language have to be reading context that language has to be read in the context of the preceding pages that discuss the individual elements of the supreme court begins by saying there are many elements that issue here mississippi supreme court was making was that the advocacy somehow incited violence and this report rejected that and said there's not a close enough nexus but i think that language honor have to be read in context but were it goes for the individual elements but even if you disagreed with broad strokes to make very clear that what happened in mississippi would not be acceptable and i think you have to read that language in that context and frankly i think that's the way superior court trial lawyers read that language additionally that language also have to be square with other preceden you substitute israel for the soviet union in afghanistan for the palestinian territories and we essentially have the same thing here that was another case that involved to get a politically motivated boycott and get a nd at a foreign power in order to change their policy in the spring courts that it was not protected by the st amendment and claiborne has to be read in conjunction with that because a board did find that the academic economic activity of boycotting the businesses wasn't protected didn't that it did not well if they would not then why would they have not why did they vacated judgment they vacated the judgment because if you are the latter passages what with the mississippi state courts were saying is under mississippi state law they couldn't be held liable for withholding wasn't before the court what the court then does it goes through each of the the mississippi courts that held that it was tortious interference with plaintiffs business that was the climate issue the mississippi state court said that the predicate for that was the violence and it basically said that the speech the advocacy the boycott itself everything here was designed to further violence in the supreme court that is no in order to make the claim that you can regulate speech because it leads to violence you have to show up close the actress because we're talking about constitutionally protected advocacy association accessorize and the court rejected that argument and said there's not a close enough nexus and i think the passages your honour's referring to really go go to that point well but the good grade let me go to great length think claiborne to talk about the economic effect of withholding your business from the mississippi business and that they bake a did the judgment a favor the businesses on it and said you can only court discussed at length the different categories of things that people were held liable for because it wasn't clear even in oral argument what people had specifically been held liable for but there again is no finding because it couldn't because under mississippi law you couldn't be held liable longshoreman explain the refusal to deal is design it's a conduct designed to coerce it's not something designed to communicate and that they you have to replay born consistently with longshoreman now i understand that they attempt to distinguish longshoreman and failure on the grounds that it's the consumer boycott that somehow this is different from the conduct an issue in those cases frankly your honour's that distinction makes very little sense because an observer is far more likely to notice military recruiters interviewing elsewhere or a number of ships sitting in port loaded with a cargo of flying the soviet flag than it is to notice what a contractor does not buy and that means that ultimately the problem here are that they that without an explanation nobody's going to notice the conduct that's particularly true here and nobody's going to understand that it's intended to be communicative the most communicative element of what's at issue here is the certified to the state whether you're boycotting or not doesn't that then bring in the communicate of aspect of the boycott to you you have to put out a public document that says yes we are boycotting or now when honor it's an ordinary certification of the type that governments require for all kinds of contracts it's the type of certification that's routinely required it's not a political message and it would be late when i registered about i have to certify i'm over the age of eighteen i don't necessarily believe that you should have to be eighteen to vote it doesn't say that it just says here's a statement of fact i'm certifying the fact that i'm over the age of eighteen and that's that's really the difference here is that you're certifying the fact you're not making a political statement by just certifying the fact the same thing is true in federal contracting when you contract for the federal government you or him obtain funds from the federal government you have to certify that you do not discriminate that says nothing about whether it doesn't affect your st amendment rights to disagree you may be the worst segregationist in the world but you're still required to certify it doesn't affect your st amendment rights and that's the distinction there your honor it in addition to that if i mention that they're employment context in order to distinguish title seven in cases like that but frankly your honour's that distinction makes absolutely no sense because their argument would mean that an employer or the state could prohibit an employer from prohibiting from hiring refusing to hire based on racial prejudice but that the state could not prohibit that same employer from refusing to work with suppliers for the exact thing racially prejudicial reason even though the substance of those two transaction identical indeed it's very difficult to understand how they believe even titles seven's prohibition on national origin discrimination could possibly survive the reading of claiborne and the reason for that is a boycott or could always claim that his refusal to hire israeli was part of the boycott itself is there is there a problem though with the fact that you are saying laid out a particular country in a particular religion and that if you had a statute just says you cannot boycott and refuse to do business based upon religion i think that would be constitutional i don't want to imply that it i think that would pass muster but to say well you can't discriminate and and refuse to do business with jews and catholics but you other reasons under the st amendment but for instance in the age contact the government has been an age discrimination for older americans but not for younger americans and that's never been viewed as constitutional problematic and there really the the point here is that the government is targeting the conduct it's not targeting the expression and it's well established that the government retarget conduct even if it's doing so because it disagrees with anything else i mean that i don't disagree that the state of arkansas the explanation and that that's what distinguishes this the the rule that they're arguing for coming back to the discrimination point has a number of implications if it were to be adopted outside of even the title seven take for instance somebody who wanted to make a point about him or somebody wanted to say that immigration laws are too lax they refuse to hire people based on who are of mexican origin because they want to protest immigration if you adopt their rule that means their conduct is protected because it's explained to be expressive the flipside of that is also true somebody could hire an illegal alien and say i want to make a point about hope and how i support open borders and i'm explaining that there for its expression is protected or at least you have to apply additional scrutiny that in other boycott how does the state anticipate or how has the state applied that and determined whether or not someone is refusing to do business based on a rip discriminatory reason i think actually this is probably one of the points of agreement between us and the other side is that that language is matured to differentiate between things that are not based on national origin discrimination but instead are just ordinary business decisions if you're making a decision because you want to er better i mean it seems to be getting into the intent of the contractor seems like a difficult a rino to be wandering around in to try to determine why in fact i'm refusing to  deal with israel it could be but in just the same sense that the same is true for hate crimes legislation are in the hate crimes context when we differentiate between motives all the time and again you're allowed to do that in the st it's not a st amendment problem because we've targeted the conduct and not the expression and again that's really the lesson of prayer and that's why this case is basically fair or longshoreman is we're targeting the conduct we're not targeting expression they are free contractors remain free to voice any opinion they want without running afoul of state law here alternatively if we are in brutally i want to address an alternative ground performance here and that is the government's broad power to impose contracting conditions or funding conditions that the district court didn't certain questions thank certification so i think there are two issues with the certification the st is when you're submitting a certification regarding activity that's at least vaguely applies to protected expression supporting the boycott for example what the supreme court has told us is versus city of new york is also relevant on this point they're not going to gauge and stuff that the law my prohibit in order to avoid being accused of having violated their government of and so here a cop a contractor who seize upon this i promise not to boycott israel is going to i think rationally conclude that if i go out and start participating in the e d s protests that i could be accused of boycotting is or all of a sudden the government can start looking at my consumer choice and say hey have you bought any products from israel lately why haven't you and i'm going to be very worried about that so the function of requiring contractors to provide a piece of private personal information that's highly controversial with the supreme court tells in cases like souter and what district or some cases like southeast builders and contractors versus run is that when the government requires a contractor to disclose controversial information of that nature the government has to at least have some reason for doing it and here the government hasn't provided really any reason the government is not really intended to sustain any of its asserted interest in its asserted interest in this case interests the government characterizes this n g discrimination statute but i don't think it really is on the call as a form of national origin discrimination but the statute does not prohibit discrimination against businesses based on israeli national origin it prohibits boycotting businesses  business with israel in israel or in israeli territories so for example boycotting an american company because it operates in the israeli settlements or because it has business contacts with the israeli government is prohibited under the statute and similarly if this were an anti discrimination supplied any evidence even that white house of israel pose a particular economic threat to israel in fact the chief drafter of the bill said he wasn't aware of anybody boycotting israel is taking this as a prophylactic measure the fact that there is no evidence for any legitimate governmental interest here i think strongly supports the conclusion that what the statute is really targeted at is expression is targeted at the point discrimination the governments that actively picking sides in boycott movements and if the government gets the power to do that in this case it's very easy to imagine the government assuming that p in other states where they say look you can't boycott planned parenthood you can't boycott healthcare providers on the basis that they provide abortion you can't boycott the companies that do business with the n r a you can't boycott companies on the basis of their association with advocacy groups that promote nd amendment right americans engage in boycotts across the political spectrum and if the government has the power to selectively target particular boycott movements for suppression which is what the government is claiming here then we'll likely see legislators in all different states suppressing boycotts based