U.S. Current Trend: Right to Boycott

In the past several years, activists who are part of the BDS movement have called for boycotts, divestment, and sanctions (BDS) aimed at Israel over its policy towards Palestine. In response, at least 27 U.S. states have enacted so-called “anti-BDS” bills. The content of the bills vary, but many include provisions that require anyone seeking to contract with the state government to certify that they are not participating in a boycott of Israel. The contractors covered by these bills might be a large company building state highway infrastructure or a graduate student who has contracted with the government to judge a high school debate competition. Palestine Legal maintains a map that details the status of anti-BDS legislation around the country and provides information about the bills’ key provisions.

U.S. coins (Photo: Skeeze/Pixabay)

The Right to Engage in Politically Motivated Boycotts

ICNL takes no position on boycotts of Israel or any foreign country, but we have long defended civic freedom in the United States, including the right of individuals to engage in politically motivated boycotts, which is protected under the First Amendment.

Several of the state anti-BDS bills have been challenged in court as unconstitutional. For example, the American Civil Liberties Union (ACLU) has challenged anti-boycott bills in Arizona, Arkansas, Kansas, and Texas. The Council on American-Islamic Relations (CAIR) has challenged bills in Maryland and Texas. In addition, several prominent First Amendment scholars have written that laws that restrict contractors from participating in politically motivated boycotts are unconstitutional.

To date, three federal courts have ruled that anti-BDS bills are unconstitutional. In 2018 a federal court in Arizona blocked the state from enforcing its anti-BDS law, which required government contractors to certify that they were not engaging in a boycott of Israel. In response, the state amended its law so that it would only apply to companies with more than ten employees, thus eliminating the standing of the litigants who originally brought the challenge. A federal court in 2018 also blocked a Kansas anti-boycott law. The law was challenged by a schoolteacher who had been told she had to certify that she would not participate in a boycott of Israel in order to participate in a state program to train math teachers. In April 2019, a federal judge in Texas struck down as facially unconstitutional the state’s anti-BDS law, which required state contractors certify they do not boycott Israel.

In each of these three rulings, the courts relied heavily on the U.S. Supreme Court’s 1982 decision in NAACP v. Clairborne Hardware to argue that politically motivated boycotts were protected by the First Amendment (boycotts meant to suppress competition or target companies involved in a labor dispute do not receive the same protection). In Clairborne, civil rights activists had called for a boycott of all white merchants in the county after presenting local white elected officials with a list of racial justice demands that were not met. The Supreme Court in a unanimous decision found that the boycott was constitutionally protected activity that involved “speech, assembly, and petition.” The Court argued that “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.”

In the anti-BDS cases referenced above, the respective courts found that the plaintiffs expressed a desire, and often took steps, to band together with others to express their dissatisfaction with Israel. For example, the petitioner in Kansas was a member of the Mennonite church, which had called for a boycott of Israel over its policy in Palestine in the hope of changing not only public opinion, but also U.S. government policy towards Israel. As such, the courts in these three cases argued the boycotts were protected expressive activity.

Under longstanding jurisprudence, the regulation of protected expressive activity is constitutional only if such regulation fulfills a compelling interest and is narrowly tailored. In all three cases, the courts found anti-BDS bills did not meet this high standard. In Arizona, the Court found that the goal of the Act “is to penalize the efforts of those engaged in political boycotts of Israel.” Similarly, the Kansas court found that the “legislative history [of the anti-BDS Act] reveals that its goal is to undermine the message of those participating in a boycott of Israel.” While the Texas court found that the law was “intended not to combat discrimination on the basis of national origin, but to silence speech with which Texas disagrees.” Even if the state had potentially legitimate goals for such legislation, such as fighting discrimination based on national identity, the courts found that the legislation was not narrowly tailored. Instead, the legislation was underinclusive because it allowed for boycotts of Israelis outside of Israel and also allowed for boycotts of other countries.

Not all legal challenges to anti-BDS laws though have been successful. A federal district court in Arkansas rejected a challenge to the state’s anti-BDS law in February 2019 and found that boycotts were not constitutionally protected expressive conduct. Civil liberties advocates criticized the Arkansas decision as significantly limiting the scope of the First Amendment and the decision is being appealed.

Instead of relying on Clairborne, the Arkansas court turned to Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) , 547 U.S. 47 (2006). In FAIR the U.S. Supreme Court had found that the decision of law schools to bar military recruiters on campus to protest the military’s “don’t ask, don’t tell” policy towards gay, bisexual, and lesbian soldiers was not constitutionally protected speech. Drawing on FAIR, the Arkansas court argued, “a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media” and so are also not protected speech. The federal courts in Kansas, Arizona, and Texas had all rejected the analogy of boycotts of Israel to the facts in FAIR. For example, the Kansas court argued that a boycott of Israel was “inherently expressive” and that an anti-BDS law required the petitioner to accommodate the state’s pro-Israel message. The Texas court pointed out that the Supreme Court in FAIR was not considering boycotts at all (the word is not mentioned once in the opinion) and so could not be used to claim that the Supreme Court had overturned Clairborne’s holding that politically motivated boycotts are constitutionally protected.

In polarizing political debates, it is often easy to lose sight of the importance of protecting constitutional values, like the right to engage in politically motivated boycotts. Yet, it is these very values that allow Americans to organize together to have their voice heard on issues important to them both now and in the future.

September 2019

For more information contact: Nick Robinson at nrobinson@icnl.org
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