America began with boycotts. Angry about Britain’s tax raises, the historian T. H. Breen writes, American colonists saw their refusal to purchase British goods as a “reflexive response to taxation without representation,” and their collective action helped forge an early sense of American identity as a precursor to the Revolution itself.

The Revolution-era boycotts were hardly the last American consumer protests. Abolitionists urged Americans to buy only goods produced by “free labor,” and the 20th-century civil-rights movement famously included the Montgomery bus boycott against Alabama’s segregated public-transportation system. Boycotts, as my colleague Conor Friedersdorf wrote in 2018, are “a bedrock of American civic life, inseparable from the Constitution’s guarantee of free speech and the wariness many feel whenever a law compels humans to violate their conscience.”

[Read: The constitutional right to boycott]

Boycotting as a tactic does not have a particular ideological valence. Conservatives called for a boycott of Dunkin’ Donuts over a paisley scarf they mistook for a kaffiyeh and of the shaving company Gillette for an advertisement criticizing “toxic masculinity.” In 2017, they tossed their Keurig machines out the window over that company’s decision to stop advertising on Sean Hannity’s Fox News show after he defended the Republican Senate candidate Roy Moore, who lost a close election in Alabama following revelations that he had hit on teenagers while in his 30s (conservative pundits don’t count that as “grooming,” because he is heterosexual). These probably won’t be remembered as fondly as resisting the British or undermining slavery, but the point is that there’s a boycott for people of any ideological persuasion.

Despite their historical pedigree, the Eighth Circuit Court of Appeals ruled in 2021 that boycotts are “purely commercial, non-expressive conduct.” A majority of the conservative-dominated panel—the only Democratic-appointed judge on the entire circuit dissented—concluded that an Arkansas law compelling state contractors to sign a form promising that they would not participate in the Boycott, Divestment, and Sanctions movement targeting Israel over its decades-long occupation of Palestinian territory did not violate the First Amendment. Their reasoning was that this state ban on a particular form of protest merely prohibits “purely commercial, non-expressive conduct,” blocking the signers from “economic decisions that discriminate against  Israel.” The dissenting judge argued that the law was unconstitutional, noting that “by the express terms of the Act, Arkansas seeks not only to avoid contracting with companies that refuse to do business with Israel. It also seeks to avoid contracting with anyone who supports or promotes such activity.”

“I think what’s really offensive about the anti-BDS laws in particular is the way that they single out not even boycotts generally, but on this one specific issue for special penalties—I think that really gives the game away that the government is trying to suppress specific viewpoints here,” Brian Hauss, an attorney for the ACLU, which challenged the Arkansas law and several others like it, told me. “And that’s really kind of the cardinal sin when it comes to the First Amendment.”

The plaintiff in this case, The Arkansas Times, had no intention of actually boycotting Israel. “We don’t take political positions in return for advertising,” Alan Leveritt, the founder and publisher, wrote in The New York Times in 2021. “If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience.” Dozens of states have passed similar laws, requiring such pledges from professions as varied as teachers, speech therapists, and defense attorneys. One need not be a Palestinian rights advocate to understand that the state’s conditioning people’s livelihoods on the surrender of their right to protest is censorship.

There are three major arguments in favor of the bans, aside from the idea that boycotting is an “unexpressive commercial choice”: that they prohibit “national origin discrimination” against Israelis; that because governments can impose sanctions on foreign countries, they can also compel nonparticipation in a boycott; and that treating economic transactions as speech would undermine antidiscrimination laws of all kinds.

The first two points don’t hold up to scrutiny. As Hauss points out, although the laws require contractors to certify that they won’t boycott companies doing business in Israel, they do not, strictly speaking, ban discrimination on the basis of national origin—non-Israeli companies are protected and Israelis who have no business interests in Israel are not. Sanctions, which are primarily targeted at depriving the sanctioned nation of economic support, not at silencing a particular form of protest, share little in common with compelling nonparticipation in a boycott, an act clearly targeted at a particular form of speech and expression. Sanctions might prevent a committed Russophile from financially supporting Vladimir Putin’s invasion of Ukraine, but that is not their primary purpose, nor do they force individuals to sign away their right to protest the policies of a foreign nation they view as unjust.

The last point, however, is more compelling. A group of First Amendment scholars wrote a brief in favor of the Arkansas law’s constitutionality arguing that free speech does not include “liberty of contract,” and so a restaurant owner cannot refuse to serve Black customers as a protest in favor of white supremacy, nor can a cab driver refuse to drive a same-sex couple. Concluding that economic transactions are “expressive,” therefore, could undermine antidiscrimination laws. The Cornell law professor Michael Dorf, one of the brief’s co-writers, summarized the brief’s position this way: “If there is a free speech right to refuse to buy goods or services from a seller on political grounds, then there is a free speech right to refuse to buy labor on political grounds and a free speech right to refuse to sell goods or services to a buyer on political grounds.”

There are certainly activities that are purely economic and have no expressive utility. The First Amendment doesn’t protect fraud, for example (although when it comes to fossil-fuel companies, some conservatives wish it did). But boycotts are both an economic and an expressive activity, making the distinction difficult to parse. A brief submitted by the Knight First Amendment Institute dryly observes that “purchasing decisions function like campaign contributions, which similarly involve elements of both expression and association.”

If states can require contractors to disavow BDS, then they could have imposed similar restrictions related to some of the most consequential protest movements in American history, such as the Montgomery bus boycott or the anti–South African apartheid movement. The Knight Institute brief notes that upholding the Arkansas law would make it so that states “could even forbid such boycott activity outright.”

Hauss, though, argues that there is a key difference between boycotts and the forms of economic discrimination that lack constitutional protection. Antidiscrimination laws tend to ensure that businesses serve, hire, rent, or sell to all comers. But a consumer’s decision not to buy from a particular business, even for really stupid reasons like mistaking a paisley scarf for a kaffiyeh, is not the same as a landlord refusing to rent an apartment to someone because of their race or religion.

[Adam Serwer: The Supreme Court seems to think discrimination is when you try to remedy discrimination]

“I don’t think there’s a logical fallacy in acknowledging a consumer’s right to boycott Starbucks to protest their secular ‘holiday cups’ while denying Starbucks the right to refuse service to Christians,” Hauss told me. (Another one for the list of great American boycotts.) “There are many good reasons to treat consumers differently from other economic actors, which is why we have specialized consumer-protection laws and why antidiscrimination laws have not traditionally applied to consumer choices.”

The argument that interpreting every economic decision as “speech” could have negative implications for antidiscrimination laws is well taken. But conservative jurists are already expanding the First Amendment’s protections of freedom of worship to create exceptions to antidiscrimination law, not just for religiously affiliated institutions but for every business owner who claims that their discrimination is rooted in religion. This is the result of right-wing control over the judiciary and the direction of conservative politics; neither the text of the Constitution nor clever legal reasoning can deter it. Gutting anti-discrimination laws is a long-term legal goal of the conservative movement; one rationale for doing so is as good as another.

Neither are anti-boycott laws specific to limiting protest of Israeli policies. Americans are generally supportive of Israel, so anti-BDS legislation is a tactically clever opening, purporting to defend a religious minority against prejudice in a manner that advances the broader agenda of suppressing liberal and left-wing speech. The right-wing advocacy group ALEC has prepared model bills for state legislatures that would help them require government contractors to agree not to boycott “fossil fuel companies, big agriculture and gun manufacturers.”

If the state can isolate an act of protest that by itself might be considered “unexpressive,” and require people to forgo it as a condition of taking a government job or contract, then many other forms of protest could be included. A protest march broken down to the acts of a single individual is just a person taking a walk. A sit-in is just a person taking a seat. ACT UP’s die-ins in the ’80s were just people lying down. Any expressive act taken in concert with others can be analyzed as a single gesture that a judge could call unexpressive and therefore subject to state censorship. If one fears that upholding the right to boycott might lead to weakening of anti-discrimination law, it seems clear the slippery slope is just as steep in the other direction.

Last week, the Supreme Court unanimously refused to review the boycott case, an outcome that could reflect the Court’s view that the issue is not ripe for decision, or the fear of the three Democratic appointees that their right-wing colleagues might reach a decision even more censorious than that of the Eighth Circuit. Whatever the justices’ reasoning in this case, their inaction will encourage more efforts at censorship. The big question is simply how many of them are happy about that.  

All of this is consistent with the emerging right-wing stance that freedom of speech is a right possessed only by speakers communicating conservative messages. Within this understanding of free speech, the state can ban private actors from speaking in ways the Republican Party does not like, because liberal or left-wing disapproval of conservative positions is a form of totalitarianism that must be suppressed by the state. It is therefore acceptable to impose state censorship on the “wrong” kind of political speech, while the “right” kind is protected from even private criticism.  

[Adam Serwer: Democracy dies in silence]

For this reason, I hold little faith that the argument made by the First Amendment scholars in favor of upholding Arkansas’s anti-BDS law will be applied evenly. Even if such laws are found to be constitutional in some narrow, technical way, they are clearly an attempt to restrict and stigmatize left-wing ideas and arguments using state power. That is censorship, plain and simple, even if, like Texas’s abortion-bounty law, it utilizes some complex legal mechanism that protects it from the courts. The society envisioned by such devices is one in which Americans have a right to say only what conservatives wish them to say.  

President Joe Biden is following a strategy of asymmetrical warfare as the 2024 presidential race takes shape.

Through the early maneuvering, the leading Republican candidates, particularly former President Donald Trump and Florida Governor Ron DeSantis are trying to ignite a procession of culture-war firefights against what DeSantis calls “the woke mind virus.”

With the exception of abortion rights, Biden, by contrast, is working to downplay or defuse almost all cultural issues. Instead Biden is targeting his communication with the public almost exclusively on delivering tangible economic benefits to working-class families, such as lower costs for insulin, the protection of Social Security and Medicare, and the creation of more manufacturing jobs.

[Read: Biden’s blue-collar bet]

While the leading Republican presidential contenders are effectively asking voters “Who shares your values?” or, in the harshest versions, “Who shares your resentments?,” Biden wants voters to ask  “Who is on your side?”

The distinction is not absolute. Trump, DeSantis, and the other Republicans circling the 2024 race argue that Biden’s spending programs have triggered inflation, and insist that lower taxes, budget cuts, and more domestic energy production would spur more growth. And in addition to their unwavering defense of abortion rights, Biden and his aides have also occasionally criticized some of the other Republican cultural initiatives, such as DeSantis’s “Don’t Say Gay” bill banning discussion of sexual orientation in early grades.

But the difference in emphasis is real, and the contrast illuminates the core of Biden’s vision about how to sustain a national majority for Democrats. He’s betting that the non-college-educated workers, especially those who are white, who constitute the principal audience for the Republican cultural offensive will prove less receptive to those divisive messages if they feel more economically secure.

“We need to reforge that identity as the party that gives a damn about people who feel forgotten, who have really tough lives right now,” says the Democratic strategist Mike Lux, who recently released a study of political attitudes in mostly blue-collar, midsize “factory towns” across the Midwest. “That’s the central mission. And that’s why I think Biden is right to be focusing on those economic issues first.”

But other Democrats worry that Biden’s economy-first approach risks allowing Republicans such as DeSantis to define themselves as championing parents while advancing an agenda that civil-rights advocates believe promotes exclusion and bigotry. They also fear that Biden’s reluctance to engage more directly with Republicans over the rollback of rights raging through red states risks dispiriting the core Democratic constituencies, including Black Americans and the LGBTQ community, that face the most direct consequences from restrictions on how teachers and professors can talk about race or bans on gender-affirming care for minors. These Democrats have grown even more uneasy as Biden lately has moved toward Republican positions on immigration (with new restrictions on asylum seekers) and crime (by indicating that he would not block congressional efforts to reverse a reform-oriented overhaul of Washington, D.C.’s criminal code.)

“Not engaging in culture wars does not mean that Democrats win: It means that we forfeit,” says Terrance Woodbury, chief executive officer and founding partner of HIT Strategies, a Democratic consulting firm that focuses on young and minority voters. The group’s polling, Woodbury told me, shows that “not only do Democratic voters expect Democratic leaders to do more to advance social and racial justice” but that “they will punish Democrats that do not.”

My conversations with Democrats familiar with White House thinking, however, suggest that Biden and those around him don’t share that perspective. In that inner circle, I’m told, the dominant view is that the best way to respond to the culture-war onslaught from Republicans is to engage with it as little as possible. Those around Biden do not believe that the positions Republicans are adopting on questions such as classroom censorship, book bans, LGBTQ rights, and allowing people to carry firearms without a permit, much less restricting or banning abortion, will prove popular with voters beyond the core conservative states.

More fundamentally, Biden’s circle believes that voters don’t want to be subjected to fights about such polarizing cultural issues and would prefer that elected officials focus more on daily economic concerns such as inflation, jobs, and health care. Those around Biden largely share the view expressed by the Democratic pollster Guy Molyneux, who studied public attitudes about key GOP educational proposals in two national surveys last year. “People don’t really want either side of these culture wars to win; they want to just stop having these culture wars,” Molyneux told me. “They really see a lot of this as a diversion.” A national survey released this week by Navigator, a Democratic polling consortium, supports Molyneux’s point: When asked to identify their top priorities in education, far more voters cited reducing gun violence and ensuring that kids learn skills that will help them succeed than picked “preventing them from being exposed to woke ideas about race and gender.”

[Shadi Hamid: The forever culture wars]

Biden hasn’t completely sidestepped the culture wars. After mostly avoiding the issue earlier in his presidency, he’s been relentless in his defense of abortion rights since the Supreme Court overturned Roe v. Wade last summer. (Earlier this year, Vice President Kamala Harris commemorated what would have been the 50th anniversary of Roe with a speech in Tallahassee, Florida, where she targeted DeSantis’s signing of legislation banning abortion there after 15 weeks.) When DeSantis signed the “Don’t Say Gay” bill last year, the White House also criticized him. And most recently in Selma, Alabama, Biden has also issued tough criticisms of the red-state laws erecting new hurdles to voting.

Yet the Biden administration, and especially the president himself, have mostly kept their distance from the surging tide of bills advancing in Florida and other red states rolling back a broad range of civil rights and liberties. Tellingly, when Biden traveled to Florida last month, it was not to condemn DeSantis’s agenda of restrictions on classroom teachers or transgender minors, but to defend Social Security, Medicare, and the Affordable Care Act; the only time he mentioned DeSantis by name was to criticize him for refusing to expand eligibility for Medicaid health coverage under the ACA.

Since the midterm election, Biden has centered his public appearances on cutting ribbons for infrastructure projects and new clean-energy or semiconductor plants funded by the troika of massive public-investment bills he signed during his first two years; defending Social Security and Medicare; highlighting lower drug prices from the legislation he passed allowing Medicare to bargain for better deals with pharmaceutical companies; and combatting “junk fees” from airlines, hotels, and other companies. In his State of the Union address last month, Biden spoke at length about those economic plans and what he calls his “blue-collar blueprint to rebuild America” before he mentioned any social issues, such as police reform, gun control, and abortion. The budget Biden will release today advances these themes by proposing to extend the solvency of Medicare by raising taxes on the affluent.

The emphasis was very different in marquee appearances last weekend from Trump and DeSantis. Trump, in his long monologue on Saturday at CPAC, accused Biden of exacerbating inflation and promised to pursue an all-out trade war with China. But those comments came deep into a nearly two-hour speech in which Trump blurred the boundary between calling on his supporters to engage in a culture war and an actual civil war, when he promised to be their “retribution” against elites and “woke tyranny.”

When DeSantis spoke at the Ronald Reagan Presidential Library, northwest of Los Angeles, last Sunday, he delivered more of an economic message, attributing Florida’s robust population growth in part to its low taxes and low spending. But he drew a much more passionate reaction from his audience later when he denounced the “woke mind virus,” recounted his stand during the coronavirus pandemic against “the biomedical security state,” and pledged to “empower parents” against the educational establishment. DeSantis received his only standing ovation when he declared that schools “should not be teaching a second grader that they can choose their gender.”

To some extent, the heavy reliance by Trump and DeSantis on these cultural confrontations reflects their belief that GOP primary voters are much more energized now by social rather than economic issues. Yet it also represents the widespread GOP belief that distaste for liberal positions on cultural issues remains an insuperable barrier for Democrats with most working-class voters, including a growing number of Latino men. “Blue-collar voters don’t separate cultural concerns from economic fears,” the GOP strategist Brad Todd, a co-author of The Great Revolt, told me in an email. “They think big global companies are in cahoots with the left on culture, and they don’t put pocketbook concerns ahead of way-of-life concerns.”

Todd thinks Biden’s attempt to define himself mostly around economic rather than cultural commitments represents his desire “to jump in a time machine and go back to the Democratic Party of the ’80s.” Indeed, Biden, who was first elected to the Senate in 1972, came of age politically in an era when Republicans repeatedly used racially infused “wedge issues” to pry away working-class white voters who had mostly supported Democrats on economic grounds over the previous generation. Some Democrats see Biden’s recent moves to adopt more right-leaning policies on immigration and crime as a resurgence of that era’s widespread Democratic belief that the party needed to neutralize cultural issues, typically by conceding ground to conservative positions.

Like others I spoke with, Jenifer Fernandez Ancona, the vice president and chief strategy officer at Way to Win, believes that focusing primarily on economic issues makes sense for Biden now, but that he will eventually be forced to address the GOP’s cultural arguments more directly. Sublimating those issues, she argues, isn’t sustainable, because it is “hurting the very people” Democrats now rely on to win and because the Republican cultural arguments, left unaddressed, could prove very persuasive to not only working-class white voters but also Hispanic and even Black men. Ultimately, Fernandez said, Biden and other Democrats must link the two fronts by convincing working-class voters that Republicans are picking cultural fights to distract them from an economic agenda that mostly benefits the rich. “We have to put to bed this idea [that] we can have an economic message that doesn’t address the racial grievance and fear of change that is at the center of all this culture-war stuff,” argued Fernandez, whose group funds candidates and organizations focused on building a multiracial electoral coalition.

[Franklin Foer: What Joe Biden knows about America]

The debate among Democrats ultimately comes down to whether Biden is skillfully controlling the electoral battlefield or trying to resurrect a coalition that no longer exists (centered on working-class families) at the expense of dividing or demoralizing the coalition the party actually relies on today (revolving around young people, college-educated white voters, and racial minority voters). Several Democratic strategists told me that one obvious challenge with Biden’s trying to define the election around the question of which party can deliver the best economic results for working-class families is that polls throughout his presidency have found that more Americans would pick the GOP. “People still think that Trump economics was better for them than Biden or Obama economics,” Celinda Lake, who served as one of Biden’s lead campaign pollsters in 2020, told me.

To Lake, that’s an argument for Biden’s strategy of stressing kitchen-table concerns, because she believes the party cannot win unless it narrows the GOP advantage on the economy. But other Democrats believe today’s party is less likely to persuade a national majority that it is  better than Republicans for their finances than it is to convince them that the Trump-era GOP constitutes a threat to their rights, values, and democracy itself. Biden’s response to the Republican initiatives censoring teachers, rolling back abortion access, and threatening LGBTQ rights “simply cannot be ‘more jobs,’” Woodbury said. “If Democrats insist on fighting exclusively on economic terms, every poll in America shows they will lose.”

University of Alabama freshman Brandon Miller has spoken for the first time since the fatal campus shooting in January which the school says he is a "cooperative witness" in.