David Bernstein aka the Volokh Conspiracy tries to spin why it’s just fine for states and the Federal government to try to force American businesses and sole proprietorships to do business with the foreign nation of Israel:
Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just like local governments require contractors to certify that they adhere to many other state laws, such as anti-discrimination laws and financial propriety laws, they also must certify, in compliance with state law, that their business does not boycott Israel.
Here is the specific language Ms. Amawi was asked to sign (see appendix A):
Pursuant to Section 2270.001 of Texas Government Code, the Contractor affirms that it: 1. Does not currently boycott Israel; and 2. Will not boycott Israel during the term of the contract Pursuant to Section 2270.001 of Texas Government Code:
“Boycott Israel” means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes; and “Company” means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.Note that, consistent with the language and obvious intent of the law (see the text here, it’s even titled “PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL”), the school district certification applies to the business, “it,” not the individual “she.” Contrary to what I’ve been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel.
Briefly on the First Amendment issue, it’s no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group. [Clarification: “it” means the First Amendment analysis. There are obvious moral, practical, historical, and other differences between boycotting Israel and boycotting members of American minority groups; those differences just aren’t constitutionally salient.] The sole proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can’t engage in action that the state disapproves of.
This is a typical lawyer’s perspective, focusing like a laser on the irrelevant LEGALITY of a law, at least, legality as it is defined by a few judges finding nonexistent emanations and penumbras in a text that says something entirely different.