Tom Leatherbury on boycott laws and free speech
Tom Leatherbury is the Director of the First Amendment Clinic at Southern Methodist University and a partner at the law firm of Vinson & Elkins LLP. In this episode, he and George discuss the First Amendment and free speech implications of recent legislation in Texas and 32 other states.
Watch the video, here.
Welcome to Good God, Conversations that matter about faith and public life. I'm George Mason, your host, and the subject today is boycotts. Boycots. Well, those are things that we know have a long enrich history in the United States. You can go back to the Boston Tea Party, of course, as a boycott against taxation without representation.
And it was in fact an economic boycott. You can think back to the civil rights era in this country, for example, when the Montgomery Boycott took place and. Blacks in the south, especially in Montgomery, were choosing to walk rather than use public transportation as a boycott against segregation policies.
Those were of course, overturned by the courts and that boycott was successful. The same is true in various other economic boycotts that we have seen in this country. Whether having to do with agriculture in California or in our foreign policy where there was a boycott and investment movement of South Africa during the apartheid era and the anti-apartheid forces that ultimately prevailed in South Africa.
Actually give credit to the United States and its decision to encourage that kind of economic boycotting of the Be Apartheid state for the changing of that culture into a more just political order in South Africa. Well, today what we have is 33 states that have now introduced and passed an anti boycott divestment and sanctions laws that would protect the state of Israel particularly.
These states including Texas and Arkansas and Arizona among others, all have copycat laws that make sure that companies that would do any business with the state that particular state, Signed pledges and are clear in their business dealings that they are not boycotting the state of Israel because of its policy toward the Palestinians and its treatment of those who live in occupied territories by the state of Israel.
These laws that have been passed by these states come about. Under the notion that they are protecting the Jewish people from the spirit of antisemitism, which of course has a long and painful history in this country and around the world. But they also actually. Go beyond the question of antisemitism by uniting it with support for the state of Israel, the government's policies toward Palestinians who claim that they are being persecuted and discriminated against by the state of Israel.
So we have competing claims of discrimination and of seeking to support the oppressed. And these laws are restricting the rights of people in their states and corporations in, particular, of being able to use their voice and their money. To protest against the treatment of Palestinians by the Israeli government.
It is possible. And Faith Commons, the organization that I represent along with my partner, Rabbi Nancy Caston, it is possible to support the existence of the state of Israel, the, to support the Jewish people to condemn antisemitism. And at the same time, support the rights of the Palestinians to live in freedom and self-determination in the Holy Land.
This is, these are not mutually exclusive options and we believe that To, to support the, right of the state of Israel to exist does not mean that you give a free pass to the government of the state of Israel in order to oppress and persecute the major, the minority Palestinians, both Muslim and Christian by the way who live on the West Bank and in Gaza.
These laws are being contested. In, in all these states by those who see this as a matter of free speech that is being denied to them on the basis of the First Amendment. The other wrinkle about all of this is that many of the anti boycott laws that support the state of Israel are being brought by evangelical Christians and Catholic Christians with support from evangelical Christians who interpret the Bible in a certain way.
That sees that the support for the state of Israel, not just the Jewish people, but the state of Israel must, be supported or else those who fail to do so will not be blessed by God to support the state of Israel in their mind from a biblical interpretation standpoint is imperative for their Christian.
And it, it comes out of interpretation of their theology, their view of scripture and their view of the end times. Many Evangelical Christians agree with this. Some of us who are Christians do not agree with that interpretation, but our voice is not respected or heard, Though this is a matter of dispute even among Jews.
And so it's, something that we continue to need to educate one another about before making these laws and then seeing and understanding the nature of the challenges of them, because it's not just a matter of free speech, it's also a matter of the first amendment protecting against a majority view religiously prevail.
Over minority views. In, in our country the matter of anti boycott of Israel has spilled over now into similar laws that have been. Fueled throughout the, states
all, most of these having been actually agreed upon and written by what's known as an organization called ALEC, which is American Legislative Exchange Council writes these laws they meet and and they, have responsible for laws like the Stand Your Ground Law in in, Florida.
That led to the exoneration of George Zimmerman when he shot Trayvon Martin and killed him. And voter ID legislations. The these are all coming out of one source of conservative legislators, but it's not only a conservative matter. Many Democrats and Jews in New York and elsewhere support [00:41:00] anti bds.
Boycotts they, support these laws because they think that it hurts the state of Israel and they need to stand with the with, the state of Israel. So this is this is. Actually not just a matter of left and right, it's about what we think is right or wrong. In terms of the American ethos and our legal system we see the implications now on fossil fuel industry.
The firearms industry, book bands don't say gay in Florida. And also with critical race theory. Being attacked in, in, in the public schools and in teaching of race, American history with regard to our racial heritage. So the matter of free speech and the matter of religion come together in these matters.
And in this episode of Good God, we are [00:42:00] grateful to welcome. Thomas Leatherbury a an appellate lawyer, a partner in Vincent and Elkins here in Dallas, the law firm, and also the director. Of the First Amendment Clinic at the Deadman School of Law. He also teaches at s SMU Law School here in Dallas, and we are delighted to welcome him to the program as he has a thorough understanding of all of these laws and the challenges to them.
So stay tuned now for my conversation with Tom.
[00:00:00] George: Welcome, Tom Leatherbury to Good God. Thank you for being with us in this important conversation about free speech First Amendment, and some of the implications of recent legislation and and protests that are challenging us in our current time. We're glad you're with us.
[00:00:25] Tom: Thanks very much. I'm happy to be here and this subject is a special interest to me.
[00:00:32] George: Well, Tom, let's outline this a little bit and ask you to tell us some, in some detail what's at stake in the current legislation that's being challenged across different states because what we know is that 33 states since
2015 [00:01:00] have pretty much copycat laws that are what we might call boycott laws that prevent people from taking a position against the state of Israel.
There. Details about that, that are back and forth in the courts as I understand it, as to whether it's about individuals or whether it applies there, or whether it's only corporations doing business with the state or whatnot. But could you explain to us what these laws are and how they're being introduced and challenged at this point?
[00:01:40] Tom: Sure. I'm happy to. I guess I'd note at the outset that boycotts have a rich tradition of being core political expression. There's a case Clayborn NAACP versus Clayborne Hardware where there was an economic boycott that was, held to be [00:02:00] protected activity. And all of these laws strike at free speech.
All of these laws compel government contractors to speak and say they won't boycott Israel. The first law in Texas was passed in 2015 and it was challenged and it was challenged successfully. A federal district court in Austin held that many provisions of the anti boycott. Law were unconstitutional.
Unconstitutional. They were vague, they were over broad, et cetera. Then the case went up on appeal and the case was mooted. The court lost jurisdiction over it when the Texas legislature exempted sole proprietorships. And small contractors from the anti boycott law, all the plaintiffs in that first case were sole proprietors.
The second [00:03:00] challenge though, is pending to the anti boycott law, the anti boycotting Israel law federal district court in Houston held again that the law was unconstitutional. Because it compelled a government contractor with the city of Houston to swear that he would not boycott Israel during the term of the contract.
And the court held the law was vague, again, over broad, unconstitutional, and that case is on appeal. It's been fully briefed. Many, religious groups weighed in with amicus briefs in that case. I don't know exactly when it will be argued, but it should be in the next six months, if not sooner.
[00:03:49] George: So you're speaking specifically of Texas. This is also around the country as the film "boycott from just vision, which [00:04:00] we will talk more about later. Outlines how different states, Arkansas, Texas, Arizona, prominently in the film have created these laws. In support of the state
of Israel guess one of the questions I have for you what jurisdiction do states have to deal with this on which seems like a federal government matter of foreign policy, yet states now are are creating their own foreign policy, in effect through these laws. Is, that something that is legally permissible , does that run into something of the separate powers question.
[00:04:49] Tom: Right, Right. To Sovereigns, Federal and State. You know, there haven't been any challenges that I'm aware of along those lines saying it's [00:05:00] interfering with the president's duty to set foreign policy for the country and Congress's duty set foreign policy for the country. The challenges have really been along the lines of constitutional challenges and the.
Regulate, I mean, the states use the power of the purse to regulate people's speech, both government contractors, and when we talk about the fossil fuels bill, for example the state's massive wealth in or massive, or management of massive wealth. In the Teacher's Retirement Fund and the General Land Office, Permanent school fund and, those sorts of Vehicles.
[00:05:51] George: So you've moved into another area. We began by talking about the anti bds laws bds, standing for [00:06:00] boycott, divestment and sanction which is a means of supporting the Palestinian cause by. Boycotting
doing business with or divesting in your investment funds or sanctioning in various. The state of Israel because of its treatment of Palestinians.
But now beyond the question of Israel, and we'll come back to Israel in a moment. What we see in Texas and in Louisiana and other states is that these same anti boycott laws are in place to protect the fossil fuel industry. And to protect the firearms industry. In fact, Louisiana just has case where they have said that they will not do business with BlackRock investments because of its concern about the [00:07:00] environment, about the, global climate.
And so their decision as an investment firm to not support fossil fuels. This undermines the economy. Louisiana says of Louisiana's, and therefore they're not gonna do business with BlackRock. So we, we, have a growing movement here. We're state officials are saying, we are going to make a decision about what's in the best interest of our state according to.
The majority that we have in the power that we have and regulate people's free speech as, a result of that.
[00:07:43] Tom: Right. Yeah. It's a very interesting development and both the fossil fuels. Anti boycott of fossil fuel companies. Bill and the anti
discrimination against Firearms company bill were [00:08:00] passed in the last legislature.
And again, these laws are being copycatted across the country. I think South Dakota was the first one, would they? South Dakota or North Dakota was the first anti fossil fuel boycott. Bill and Texas copied that. Again, these bills are
just abominable under the First Amendment. You know, we say at our clinic at SMU, Texas, so many First Amendment violations, so little time, and this is just an example of an issue that's very important to the Republican legislators.
They had complaints from. Oil and gas companies in the Permian Basin that they were having access to capital restricted and they were having trouble expanding their operations. And and this is the [00:09:00] reaction, the. Criticisms the constitutional criticisms of these bills. The fossil fuel bill and the firearms bill are very similar to the anti, those criticisms of the anti-bds legislation.
They use incredibly broad terms, vague terms. They compel speech on the part of government contractors. They impose unconstitutional conditions. On doing business with the government, right, because of the compelled speech. The Louisiana case is the one that's farthest along that I know of, or the Louisiana decision making process where they announced that divestment from Black Rock.
Texas is a little bit more extended process. It involves the preparation of a list. Of companies that allegedly boycott fossil fuel companies by the comptroller's office. [00:10:00] And then notice is given to the funds like the Teacher's retirement Fund that are covered, the state agencies or vehicles that are covered by the statute, by one part of the statute.
And the state agencies or vehicles have just responded as I read last week. And they are claiming some of the similarly vague exemptions under the law that would allow them to keep, or some of them are that would allow them to keep investing in BlackRock. Despite the fact it's a listed company in the comptroller's eyes that boycotts fossil fuels companies.
And we had the, ex example of the firearms bill that, that you and I have talked about before, which is the city of Anna in Dallas County did not choose Citigroup [00:11:00] to underwrite its municipal bonds. Even though city groups fees were lower. They picked the second lowest bid because they perceive accredited the NRAs designation of Citigroup as a company that discriminates against firearms companies or firearms manufacturers.
[00:11:25] George: You know, in, in the case of the Muslim woman who Joined with the council on American Islamic relations. Again, anti-BDS law in Texas. Right. The federal district judge ruled in her favor saying that the relationship. Between the state of Israel and the Palestinians is an ongoing [00:12:00] contested matter, one of continuing debate and that the state of Texas was using coercion rather than persuasion to settle that matter at the state level. In, ruling in that way. I, guess the, question I have for you is there, there has been historically a conservative philosophy that says that contested matters are cultural things that should be argued until there is cultural consensus rather than settling them with law and stifling debate. Isn't that exactly what's happening with these anti boycott laws?
[00:12:52] Tom: Yes. I, really couldn't agree more with you on that. I think [00:13:00] that's, where you get into some of the constitutional problems about compelling contractors to swear that they won't boycott Israel or they won't boycott firearms companies or fossil fuel companies.
You know, Texas and the other states that have passed these laws rely very heavily on a climate of antisemitism to try and justify these laws. And there's an extensive discussion of them in the a and r engineering. Case in the second challenge that's ongoing to the anti-BDS laws in Texas.
They also say and this argument was persuasive in the Arkansas case different from the Texas courts, the way Texas courts have ruled so far, that this is really [00:14:00] regulating conduct and not speech. Economic conduct. Yes. Rather
than speech, but you know, I fall on the speech side of it. I see speech everywhere, I guess.
George.
[00:14:16] George: Well, I understand, but even if I'm not mistaken didn't Citizens United establish money is an economic form of speech in, terms of how one supports political? Candidates and movements. So there is a sense in which whether the giving of money or the withholding of it is constitutionally an act of free speech.
And we have a tradition of saying that.
[00:14:49] Tom: No, I agree. And, you don't really even need to look As recently as Citizens United, you can go to the NAACP case that I mentioned at the [00:15:00] outset because it was classic economic decisions not to buy from that hardware store. Right. Because of their perceived policies.
And
[00:15:10] George: that was what used public transportation in Montgomery, those sorts of things. Right, right. You know when you go down this path what's good for the goose is good for the gander, ultimately, right? So you, have a situation where right now you have concerns of those who are conservative legislators in Texas and Arkansas and Arizona and elsewhere about these particular matters.
But you could also conceivably see, This could go off the rails in in more liberal and progressive states where, for example, in California and Texas, if you if you don't [00:16:00] support Planned Parenthood or if you if you want to boycott Planned Parenthood and, they have a different attitude toward reproductive rights, for example then we, have we're, on the other.
The shoe is on the other foot. Conceivably, even Texas, for instance, could say. That because in 2019 the Republic of Ireland, a very Catholic country, decided that it would provide for abortions through the first term and in cases of rape, incest in the mother's life. Beyond that point, even we could conceivably say that because our abortion policy in Texas virtually bans abortion, that we would not do business.
Ireland. Well, I mean, where does this end, Tom?
[00:16:53] Tom: Yes. I, think that's a really good point because the Goose rule does apply with full [00:17:00] Force here, and it's it, just goes to show that difficulty in the problems with. Adopting a majoritarian view of the First Amendment. Yes. You know, it I thought, I always thought Republicans and conservatives would, you know, hated compelled speech.
Right. They don't need to, you know, that runs against all the individualism we're taught in, school and in at home. Right. But, Now it's just I'll compel you to say anything as long as I agree with it. I'll compel you to play the star spangle banner before every game. Right? And that's another horribly unconstitutional law that probably will never be challenged because nobody wants to be against the star span banner.
But it's just, it's it's such a [00:18:00] majoritarian anti First Amendment. Anti individualism and free thought concept. It's, you know, and not even touching the ordinary business purpose, which is driving these funds to emphasize more
environmental, social, and governance. Goals environmental friendly, goals because they wanna maximize shareholder
[00:18:27] George: return.
Exactly. You know, the state has to be about the common good about the, general welfare. And what we have is devolving only to economic matters in some of these cases where fossil fuels and whatnot are concerned. But you know, I think there's another matter here too. You mentioned that, you know, the Bill of Rights First Amendment in particular is a minoritarian amendment. That is [00:19:00] it's, meant to protect minority speech and minority expression of religion, for example. And yet what we have actually is not just a matter of speech being contested in these anti boycott laws, but what we will see in the boycott film for those who come to see it.
And what we see in, Arkansas in particular and what we see in Texas our Governor Abbott they, are taking a religious position and they are arguing that we must stand. With Israel because of a certain biblical interpretation of their faith whether American conservative evangelical faith, or Catholic faith in the case of our Texas governor.
But nonetheless, the argument that [00:20:00] Israel has a special status before. As a state they would say the Jewish people, but they're confusing the Jewish people generally with the state of Israel repeatedly in these matters. And, in Arkansas, the sponsor of the anti-BDS bill actually said this grew out of his faith.
And that the church is protected from the state, but the state is not protected from the churches intrusion in and he argued specifically that. We are seeing at our, at the Supreme Court level and at other levels. Now a shift in the way the courts are viewing the first Amendment with regard to religion and the non establishment side is disappearing in favor of the free exercise side.
Right? And, so this is a case of religious intrusion. [00:21:00] Into the public square. In, in, in my view of, reading this. What's your take on where the courts are moving in permitting this very clear statement of a religious motivation for these laws in in, the anti VOCO movement?
[00:21:22] Tom: Yes it was.
All over the legislative history that I've looked at. I haven't looked at all of it, but the motives were very, expressed and spelled out. And it relates to the state trying to justify the law because of antisemitism. As you said it's, Israel not, the Jewish people. I, you know it's, I completely agree with you that the [00:22:00] establishment clause is an inch high and the free exercise clause is a foot high.
In the cases that we've seen, particularly the last term, the praying coach case and that you wrote about, and the school voucher. Case up in Maine. And, you know, we will probably see inroads made further inroads made in anti discrimination laws in the name of religion. Yes. In the website designer case that is the sequel to the Masterpiece Cake Shop case that the court heard several years ago.
So I don't I, you know, I have a very good friend who runs the Law and Religion Clinic at University of Texas Law School, and I feel like calling him every day and saying, Gosh, I wish, you know, you're in the cap seat. [00:23:00] You know you're gonna, you're gonna win most of your cases. And poor First Amendment lawyers, Other First Amendment lawyers might, lose more of their cases, but cuz of the trends.
But I think it's, hard to predict where this will. It really
[00:23:17] George: is. Well, you know we've talked specifically so far about the anti boycott of Israel or the anti-BDS laws. We've talked a little bit about the anti fossil fuel and anti firearms. Laws as well. But this comes down to other things as well.
The trend toward book banning towards censorship of speech informally you know what we are, seeing is from the left and right, both a a complaint happening culturally about cancel culture. That right, that [00:24:00] if, we are. If we are in an environment where someone disagrees with us, then we don't feel safe in that environment and in an academic environment in particular.
We're supposed to be able to explore ideas freely and and, there's a certain resilience that's called for with, intellectual pursuits, right? Everything can't be an existential struggle. I mean, but what we just saw yesterday as a matter of fact, is that another judge has federal.
Judge has decided to join a movement of conservative judges in saying that they will not hire Yale Law School student interns because they believe Yale Law School is promoting a kind of cancel culture, and that is unfavorable to conservative views. I, [00:25:00] know you're close to the folks up there and I'm curious what you've heard and how, does this, how do.
Adjudicate this Tom, because this could go on and on to the point where we're so balkanized that we, nobody can talk to anybody anymore.
[00:25:18] Tom: Right. And certainly they can't talk civilly. Yeah. Which is how you need to have these discussions about critical issues, of public importance, issues of faith and issues of belief.
You know, co a couple of things to respond to the. The Yale Law School point that you made, I think it was actually 12 judges who joined the same statement that said they would not hire graduates from Yale Law School because of a perceived cancel culture of conservative voices at, Yale Law School, which I, don't really I, know there have [00:26:00] been some incidents where speakers were not allowed to finish or.
Rudely treated. And I think those violated the the, guidelines that Dean Kin, who I have immense respect for and immense belief in has, established for free speech events on a campus. I think I think that was an aberration and yet, And whatever else these judges point to led to their decision.
So I saw it heartney. I read yesterday that Judge Jerry Smith and the Fifth Circuit said I look forward to getting more applications from Yale because some of my colleagues are not accepting applications from men and women law students at, Yale. So that was interesting and I'm kind.
I read some snarky legal publications and Vivia Chan of [00:27:00] Bloomberg is one of my favorites, and her first line was Yale Law students are quaking in their boots. Gimme a break. Yeah. You know, I don't think there'll be any adjudication. I think they could have done the same thing and not announced it, but obviously they wanted to make a point and wanted to stand out.
Right. To your point about safe spaces and the academic environment and book banning and I mean that, that is true in, you know, a hundred fold at the law school and I, you know, I think the First Amendment clinic in our class is. Safe space for anybody sometimes because of the, facts of the cases that we read and the facts of the cases that we work on, right?
Everything from animal activists who want to protest with very graphic videos of [00:28:00] mistreatment of agricultural livestock to a matter looking at the obscenity statute in Texas and reading. Awful details of cases that have been decided under that, statute. So we, talk about that and it's also a time honored First Amendment tradition and one that is very near and dear to the Stanton Foundation, who generously gives us money to do what we do.
That you should defend speech you hate. Yes. That's the point of the First Amendment. And. That's the point of the system. People get lawyers and they
get good lawyers if they can and, my obligation is to represent them zealously once I take 'em on. And I think it would be a really dull existence if you agreed with every [00:29:00] client about everything and didn't have disagreements about what they say or what they believe and how they express it.
I, just think, I think there's a lot to say there. I'm sure I've botched it, but it's, there is a lot to say about that. I think the book banning is just another example of your transplantation of a cultural and a religious exemption or, belief system on, top of the public sphere or in the public sphere injecting it in the public sphere.
So I. I think it's part of this larger trend that you're talking about.
[00:29:45] George: Well, there are a lot more permutations of this that we could tease out together. And I, think this just wets our appetite, actually . And for, those who can, I'm going to give more details and a few moments about [00:30:00] the Event that we're co-sponsoring the First Amendment, Clinic, and Faith Commons the viewing of the film Boycott and the panel that follows of which you will be part.
And Tom I'm grateful for your time. I have one last question for you. So yes, sir. I'm curious because we are faith commons after all and, part of our calling is to invite people to bring their faith into the commons, so to speak for the sake of the common good. Can you say a word about your own faith tradition and what you are drawing upon these days in this current climate to help promote the common good?
[00:30:45] Tom: Sure, happy to. So my father was an Episcopal minister in Fort Worth and he was at the same church from 1948 to 1980 in Fort Worth when he retired. [00:31:00] So it's, hard to find another church when your father has been
your priest, . And I can't say that I go to church very much. My father was all about, and my family was all about public service and service to people, and I think for a lot of people, including myself, there's some basis in faith for that.
I mean, he was the. Fort Worth Police department's, chaplain. He was the chaplain at the primarily Roman Catholic Hospital, St. Joseph's he was on the Fort Worth School Board during the gnarly years of desegregation. And you know, I just don't remember an evening when he wasn't, and, you know, serving others.
And you know, Can't say. I do that every evening and I can, but [00:32:00] but it's front of my mind when I get involved in something and it's certainly front of
mind at the First Amendment Clinic. I think these days you have to draw on that deep belief in the arc of history and, in public service.
And if you listen to the, podcast, strict scrutiny, Run by three brilliant women law professors. You realize the value of celebrating the victories you have and when you can. And also self-care .
[00:32:35] George: Well, I didn't know your dad but I suspect knowing you that he'd be awfully proud of you. Well, I hope that my children could draw some similar inspiration from me and in public services.
Well, so Tom, thank you so much for being with us on Good God. And we're looking forward to the panel and the filming the film boycott on October 20. [00:33:00] Absolutely. Thank you for having me.
Well, I hope you enjoyed our conversation. Tom Leatherberry is quite an interesting fellow and we're delighted that he and Faith Commons are finding ways to partner up together. Tom, as I mentioned, leads the First Amendment Clinic at the [00:43:00] Deadman School of Law here at SMU in Dallas and the First Amendment Clinic.
And Faith Commons are co-sponsoring the viewing of the film Boycott that has won many awards as a documentary addressing these matters that we have just discussed. It Is a template for us as we begin to have larger conversations about our culture, about what is in the interest of the common good and about how we
can do something to create a more just and more civil society with more civil conversation with one another is a matter of fact.
And so we'll be showing this film. At the Deadman Law School on Sunday afternoon, October 23rd at 4:00 PM there'll be a panel that will be discussing the film and the implications of [00:44:00] the First Amendment and of many of the legal challenges to it and where the courts are going on this matter.
And I hope that you'll consider joining us. It's $15. And it is going to be a stimulating time. It'll be four o'clock to about six or six 30 and you can get more details about that and sign up to come by. Going to our website, faith commons.org. That's faith commons.org and finding the event and there's an event Bright that you can click there and make a reservation and we look forward for you to be with us to view that film and to be part of the conversation.
Thanks for joining us as always on. Good God.