1. The government generally may not discriminate based on political viewpoint in selecting contractors, even for run-of-the-mill services such as trash hauling, see Bd. of Comm’rs v. Umbehr (1996). There may be an exception for specific cases where the government can show that a business’s political speech greatly interferes with the operation of the government entity (an adaptation of the government-as-employer Pickering v. Bd. of Ed. test; but that would require case-by-case decision-making, and the categorical ban in the Nassau County law (if it’s applied to business’s political speech) would be impermissible. Indeed, this ban — again, if it’s read as covering businesses’ speech — is likely unconstitutionally overbroad, in violation of the First Amendment, see U.S. v. Nat’l Treasury Emp. Union (1995).
2. But the First Amendment problem is especially clear when it comes to refusal to allow someone to perform a concert on government property. Such property is likely a “limited public forum,” open to a wide range of speakers for their own speech (though requiring that they pay money for it), see Southeastern Promotions, Ltd. v. Conrad (1975). The government may not discriminate based on speaker viewpoint in administering such property, even if the speaker is planning on expressing that viewpoint right there on the government property. It certainly may not discriminate based on the speaker’s past speech on his own property. It’s not clear to me that the ordinance would even apply to Waters’s concert. But if it did, it would violate the First Amendment.
Fortunately, the Nassau Coliseum is more respectful of the First Amendment than Kopel; according to Newsday (Robert Brodsky):
Jeffrey Gewirtz, chief legal and administrative officer at Nassau Events Center, which has a 49-year lease with the county to operate the arena, said Waters’ opinions are protected speech.“NEC respects the constitutionally guaranteed rights of all people and therefore intends the Coliseum — under its stewardship — to be a venue that respects the expression and exchange of a wide variety of ideas and viewpoints,” Gewirtz said.Gewirtz said Nassau’s BDS law does not apply to Waters because he does not have a contract with the county.
This matter has been developing over the past several weeks, but I just learned about it (from a National Coalition Against Censorship newsletter), and I thought I’d mention it. And it seems especially apt given the controversy about the proposed amendments to the anti-Israel-boycott statute: The Nassau County incident helps show that some government officials are indeed quite willing to use ambiguous laws as means to punish or suppress pro-boycott advocacy and not just the boycott itself. I generally support Israel in many respects, and oppose boycotts of Israel; but speech harshly critical of Israel and urging boycotts of Israel is just as constitutionally protected as speech harshly critical of any country or organization.