From the Boston Tea Party to the Montgomery bus boycott to the boycott of apartheid South Africa, politically motivated consumer boycotts have long been part and parcel of American politics. But are they protected by the First Amendment? For 40 years, the answer has been an unequivocal “yes.” But in a recent case from Arkansas, a federal court of appeals ruled otherwise. If the right to boycott is to be preserved, the Supreme Court must step in.

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In NAACP v. Claiborne Hardware Co., the Supreme Court in 1982 unanimously upheld the First Amendment right of Black Mississippians to boycott local businesses in protest against segregation and racial inequality. The decision established that politically-motivated consumer boycotts are fully protected by the Constitution. As a result, today, people of all political stripes can proudly exercise their right to boycott — from right-wing boycotts of companies that support Planned Parenthood to left-wing boycotts of companies that support the National Rifle Association. Now, that long-standing precedent has been called into question.

Since 2016, 28 states have passed laws requiring individuals and businesses that receive government contracts – from substitute teachers to construction workers — to certify that they will not participate in boycotts of Israel or Israeli settlements in the West Bank. My client, the Arkansas Times, was asked to sign such a certification in order to renew its advertising contract with a state technical college. Although the Arkansas Times does not boycott Israel, it refuses to be bullied by the state into disavowing its civil liberties. As Alan Leveritt, the publisher, put it: “If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And as journalists, we would be unworthy of the protections granted us under the First Amendment.”

These anti-boycott laws have affected Americans from all walks of life. A teacher in Kansas was told that she could not participate in the state’s teacher-training program because she refused to sign the anti-boycott form. A lawyer in Arizona was told that he could not be paid for his work on behalf of incarcerated people because he refused to sign the certification. And a child speech pathologist in Texas lost her contract with a local school district because she refused to sign. Engineers, writers, journalists, and even university students who want to judge high school debate tournaments have all been asked to certify that they do not participate in boycotts of Israel or Israel-controlled territories. One town in Texas even briefly required victims of Hurricane Harvey to sign the anti-boycott certification as a condition of receiving disaster relief funds.

Most of the federal courts that have addressed these anti-boycott laws have recognized that they violate the First Amendment. Unfortunately, the Arkansas Times’ case came out differently. The U.S. Court of Appeals for the Eighth Circuit held that the First Amendment does not protect “the purchasing decisions at the heart of a boycott” — even if a law selectively penalizes boycotts on a specific topic, like boycotts of Israel. Under the Eighth Circuit’s reasoning, Alabama could have suppressed the Montgomery bus boycott by outlawing boycotts of municipal buses or segregated businesses. That notion is in direct conflict with the precedent set in Claiborne Hardware affirming our right to participate in political boycotts, as well as a long line of Supreme Court cases recognizing that the government cannot take sides and distort public debate by selectively penalizing disfavored viewpoints.

The court of appeals reasoned that because one can’t know the meaning of a decision not to purchase from a business unless it is accompanied by speech, the boycott itself is not protected, and the state is free to single out and penalize the boycotts it disfavors. The same reasoning applies to marches. One can’t know the meaning of a group of people walking together unless it is accompanied by placards, chants, and speeches. But surely the government could not selectively ban marches protesting the Israeli government’s policies.

That is why the ACLU just filed a petition asking the Supreme Court to take up the Arkansas Times’ case and reaffirm that the First Amendment still protects the right to boycott. While we await their decision, states have started to pass similar laws suppressing boycotts of the fossil fuels, firearms, mining, timber, and agriculture industries. All sorts of special interests are pushing anti-boycott laws to stifle protest against them. If the court does not step in, a form of protest dating back to the American Revolution itself will remain in jeopardy.

Celia Banos calls her son, Jhean, a born musician. Ever since he was a little boy, Jhean loved music. He learned the guitar, and after high school, he played in a band called The Parallels. At the age of 21, Jhean had his first episode of schizophrenia.

Jhean is 28 now, and — like thousands of people with serious mental illness — he cycles in and out of the Los Angeles County jail system. This cycle repeats itself because the county does not fund robust mental health services and alternatives to incarceration. Jhean’s family has tried to get him the help he needs, but they cannot find affordable, quality care for him. In moments of crisis, the family’s only option has been to call the Los Angeles Police Department.

Calling the police, however, causes the family even more trauma. In one recent incident, LAPD officers tased Jhean multiple times. In another incident, Celia says the police made fun of Jhean and laughed at him.

“This is someone’s son. Someone’s brother. He’s our family member, and he’s sick,” said Celia. “Being sick doesn’t mean that he is a criminal, and you have no right to laugh at someone like that, especially in front of a mother.”

Credit: Tara Pixley

I met Jhean and Celia over the summer while investigating conditions at the LA County jail.

Every day, I get updates from the jail telling me how many people are stuck in processing at the Inmate Reception Center (IRC) for more than 24 hours.

I get these updates because, since 1978, the ACLU has served as a court-appointed monitor of the LA County jail system. In that capacity, we gather information from the county and from incarcerated people in order to advocate on their behalf when jail conditions fall below basic constitutional standards of safety, hygiene and decency.

Earlier this summer, one of these daily updates showed exceptionally long wait times at the IRC. On that day in June, at least 28 people had been stuck at the IRC for more than 49 hours. That same day, I went down to investigate.

What I saw shook me.

The IRC was filthy. My shoes stuck to the floor. Two toilets were overflowing with human waste. More than a dozen people were trying to sleep on the floor. In an area known as the “front bench,” five individuals were sitting chained to their chairs as is required. The daily report noted that two of those five had been chained to the front bench for more than 24 hours. People called out to me that they had only been given peanut butter sandwiches to eat. Others called out that they hadn’t been provided with their medication and were awaiting psychiatric evaluations.

Over the next few weeks, I went back to the IRC with my ACLU colleagues to investigate the conditions, talk to people detained at the IRC, and talk to the LA County Sheriff Department’s staff about improving conditions.

Conditions worsened throughout the summer, and by August people were stuck in the IRC for four to five days, and some chained to the Front Bench for over 72 hours.

This is when Celia called the ACLU, and I eventually met Jhean. Celia was concerned that Jhean had been arrested and taken to the IRC but had not received housing for days, even though he had been diagnosed with a severe mental illness. I checked our reports and discovered that Jhean had spent almost 100 consecutive hours chained to the front bench. I went to visit Jhean, who had finally been transferred to a cell in the Twin Towers Jail. I saw that his wrists were swollen, cut and bruised — consistent with being handcuffed for so many hours.

Tragically, Jhean was just one of many who suffered from pervasive abuse in the IRC in late summer. My colleagues and I saw and heard reports of:

• People with serious mental illness chained to chairs for days at a time, where they slept sitting up.
• Dozens of people crammed together, sleeping head-to-foot on the hard concrete floor.

• People defecating in trash cans and urinating on the floor or in empty food containers in shared spaces.
• Unhygienic conditions, including floors littered with trash, overflowing sinks and toilets, no access to showers or clean clothes for days, and lack of adequate access to drinking water and food.
• Lack of adequate health care, including failure to provide people with serious mental illness or chronic medical conditions their medications, or to provide care to people dangerously detoxing from drugs and alcohol.

Ultimately, the ACLU of Southern California and the ACLU National Prison Project sought an emergency order from a federal judge to make LA County and the LA sheriff limit wait times and provide adequate hygiene and medical care at the IRC.

The level of daily suffering and misery experienced by people in the IRC is unspeakable. The LA County Board of Supervisors — the people ultimately responsible for the jails — know about the suffering, and the county’s attorneys even conceded in court that the horrors we recounted were true.

This level of suffering and misery could be avoided.

Years ago, the LA County Board of Supervisors committed to a “care first, jails last” approach to mental health treatment and meeting the needs of our unhoused community. But the Board of Supervisors has yet to commit to a timeline for establishing the thousands of community beds and services needed to reduce overcrowding and stop the cycle of people coming in and out of jail because they cannot access necessary mental health care, substance use treatment, or housing.

Credit: Tara Pixley

Jhean remains in jail, as of this writing. Celia hasn’t been able to visit him, because the sheriff’s office keeps canceling her visits. She believes it is in retaliation for speaking out about Jhean and the nearly 100 hours he spent chained to a chair in IRC. Celia wishes her family could access consistent treatment for Jhean.

“Why jail?” said Celia. “My son does not belong in jail. He has an illness.”

She worries for his safety. “I’m scared for my son,” she said. “This is an everyday thing.”

Learn more about Celia and her son’s story below:

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Rights Behind the Headlines is a new blog series from the ACLU of Florida that dispels misinformation and gives Floridians critical information about the most pressing issues facing our state. Read the full series at aclufl.org/rightsbehindtheheadlines  

Today, we’re dissecting Gov. DeSantis’ political stunt in which he sent asylum seekers to Massachusetts. Read the headline from the New York Times here: Florida Flies 2 Planeloads of Migrants to Martha’s Vineyard

Over the past year, Republican governors in the South have transported migrants seeking asylum at the border to Northern cities. Texas Gov. Greg Abbott has led the trend, creating an entire system bussing migrants to Chicago, New York City, and Washington, D.C.

During a press conference in late September, Florida Gov. Ron DeSantis took credit for flying to Martha’s Vineyard in Massachusetts a group of 50 Venezuelan migrants and asylum seekers, including families with young children–who were reportedly misled with false promises of housing and jobs. Americans across the country and the international community have denounced DeSantis’ move as a deceptive and cruel political stunt.

First, the migrants sent to Martha’s Vineyard were picked up in San Antonio, Texas, and were never scheduled to arrive in Florida. They were lured with the false promise of expedited work permits and never told exactly where they were going. Families with children were assured they would receive assistance when they arrived. None of that was true. Instead, people working on behalf of the DeSantis administration gathered them on a plane with those false promises but without any plans for shelter, food or medical care. DeSantis’ proxies never alerted any first responders, members of the Massachusetts government, or the nonprofit community, which is usually instrumental in providing resources for asylum seekers, about the flight. The migrants arrived in Martha’s Vineyard alone and without help, without informed consent, coordination, or planning.

Florida state records show that Vertol Systems, the airline company used in this plot, received two payments of $615,000 and $950,000. This means that Gov. DeSantis used over $1.5 million taxpayer dollars to pull off this scheme, going out of his way to put families that had no contact with Florida at risk, by tapping into a $12 million fund that had been unnecessarily appropriated to transport migrants out of Florida.

DeSantis continues to target and denigrate immigrants for his own political gain. Yet, migrants are intrinsic to the fabric of Florida, making up 20 percent of all Floridians.

This much we know: the children and families transported in buses and flights have sought asylum. Asylum is a lawful process protected under both United States and international law. Seeking asylum is a legal right that is essential for people fleeing persecution, including violence and abuse, in their home countries. Asylum seekers, like those who were fraudulently lured  onto these flights, deserve to be treated with dignity and respect. Unlike Gov. DeSantis, the community in Martha’s Vineyard fortunately came together to support the families and mitigate further trauma. They offered them temporary shelter, food and water, and legal assistance.

The flights are now the subject of a criminal investigation and three lawsuits. One lawsuit was filed by several of the migrants, who are represented by Lawyers for Civil Rights, and another was filed by State Senator Jason Pizzo (in his personal capacity) who challenges DeSantis for misusing state funds for the flights.

The Governor exploited human beings lawfully seeking asylum to appeal to his political base and divide Floridians. He was also attempting to distract from his many policy failures on the real issues impacting Floridians, including desperately underfunded public schools, the elimination of access to abortion care, a lack of gun safety measures, the number of teacher vacancies across the state, the rising costs of housing, making Florida schools a political battlefield by banning conversations about race and gender discrimination, and blatant discrimination against LGBTQ+ communities.

Across Florida and the country, the message from Americans is clear: no one should be used as pawns, especially not for political gain. 

Everyone deserves to be treated with dignity and respect, and it’s past time politicians like Gov. DeSantis stop scapegoating immigrants to further divide our state and country. Florida’s communities thrive when all people seeking a better life are welcomed.