U.S. Current Trend: New Threats to the Right to Boycott

Politically motivated boycotts have long been a tool for social change in the United States, from American colonists’ boycott of British tea to civil rights activists’ refusal to patronize segregated businesses in the Jim Crow South.

Despite this proud tradition, Americans’ ability to use their consumer power to have their voices heard is under new threat after some states have penalized boycotts on positions with which they disagree and a recent 8th Circuit decision finding no constitutional right to boycott. The 8th circuit decision would seemingly allow the government to selectively penalize consumer boycott campaigns on a range of issues whether targeted at companies that support Planned Parenthood or the National Rifle Association.

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

This new threat to the right to boycott has its roots in states’ actions against the anti-BDS movement. Over the past decade, US activists who are part of the BDS movement have called for boycotts, divestment, and sanctions (BDS) aimed at Israel over its policy towards Palestine. Citing the need to protect Israel from these boycotts, since 2015 at least 34 U.S. states have enacted anti-BDS bills. The content of these bills vary, but many include provisions that require state government contractors certify that they are not participating in boycotts against Israel. These provisions can apply to a range of persons and firms with government contracts, from large construction companies building state roadways to a family applying for a state relief grant after having their home destroyed by a hurricane.

More recently, this model of anti-boycott laws aimed at the BDS movement has been used as a template to target boycotts on other hot-button issues. Often described as “anti-ESG” bills, state lawmakers have required the state not do business with or invest in companies or investment funds that use certain “environmental, social, and governance” criteria. In at least ten states legislation has been introduced that target boycott campaigns against the fossil fuel and firearms industries. For example, since 2021, Texas, Oklahoma, West Virginia, and Kentucky have enacted laws that prohibit the state from contracting with companies that boycott the fossil fuel industry. In 2021, Texas passed a law barring the state from contracting with companies that “discriminate against” the firearm and ammunition industries, barring doing business with companies that boycott gun manufacturers. And the American Legislative Exchange Council (ALEC), a group of conservative state lawmakers, has created model legislation that would bar corporations that do business with a state from engaging in any economic boycott. Just Vision maintains a tracker that details the status of anti-boycott legislation around the country as well as its key provisions.

Where the anti-boycott provisions in these laws have been challenged, federal courts have generally found them to be unconstitutional. For example, in 2018 a federal court blocked Kansas’s anti-BDS law, which 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 training program. Similarly, in 2018 a federal court blocked Arizona from enforcing its anti-BDS law, which required government contractors to certify that they would not engage in a boycott of Israel. (In response, the state amended its law so that it would only apply to companies of over 10 persons, thus eliminating the standing of the litigants who originally brought the challenge.) In April 2019, a federal court struck down Texas’s anti-BDS law as facially unconstitutional and in May 2021 a federal court similarly found Georgia’s anti-BDS law violated the First Amendment.

These federal court decisions relied on NAACP v. Claiborne Hardware, a 1982 U.S. Supreme Court case in which white merchants in Mississippi had sued the NAACP for organizing a boycott against them for their segregationist policies. The Mississippi Supreme Court had held that the entire boycott was unlawful under common law tort law because some of the boycott participants had engaged in threats or violence. The U.S. Supreme Court unanimously reversed, finding that “[t]he right of the States to regulate economic activity could not justify complete prohibition against a nonviolent, politically motivated boycott” and that “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” In other words, the Court found that peaceful participation in a politically motivated boycott was protected First Amendment activity.

Not all challenges to these recent anti-boycott laws though have been successful. In 2018 the Arkansas Times challenged Arkansas’s anti-BDS law, after refusing certify that it would not engage in a boycott of Israel in order to sell advertisements to a state college. After contradictory judgments in earlier federal court rulings, a divided 8th Circuit Court of Appeals sitting en banc upheld the state’s anti-BDS law in June 2022. The majority claimed that while the First Amendment protected advocating for a boycott, the actual “purchasing decisions at the heart of a boycott” were “purely commercial, non-expressive conduct” that was unprotected and could be regulated by the state.

The 8th Circuit, like others defending the constitutionality of anti-boycott laws, relied heavily on the U.S. Supreme Court’s decision in 2006 in Rumsfeld v. FAIR. In that decision, Congress had required universities to allow military recruiters access to students on campus in order to continue receiving federal funding, after some law schools had banned the military from recruiting on campus over their discriminatory policy against LGBTQ servicemembers. The Supreme Court held that although law schools’ public criticism of the military’s policy was constitutionally protected, the act of barring recruiters was not so “inherently expressive” that it would be protected under the First Amendment. In finding there is no right to boycott, the 8th Circuit applied similar logic to claim the act of actually engaging in a boycott was not protected expressive conduct.

The 8th Circuit’s decision, which was appealed by the ACLU to the U.S. Supreme Court in October 2022, could allow state governments to selectively penalize boycott campaigns to silence viewpoints with which they disagree. This has the potential to impact not just boycotts against the fossil fuel industry, firearms manufacturers, or Israel, but also boycotts undertaken in the name of a broad range of other issues from LGBTQ rights to worker protections. It could also have a silencing impact on other constitutional rights, such as the freedom of assembly. As the ACLU argued in its appeal, the 8th Circuit’s reading of Rumsfeld v. Fair was so erroneously broad as to potentially strip constitutional protection from conduct at protest marches, such as walking or standing, since by themselves these acts are not “inherently expressive.”

Participating in a consumer boycott is an expressive activity intimately related to having one’s voice heard. Under longstanding jurisprudence, the regulation of protected expressive activity is constitutional only if such regulation fulfills a compelling interest and is narrowly tailored. Laws that selectively punish consumer boycotts do not meet that criteria. As an Arizona federal court found in blocking the state’s anti-BDS law the goal of the Act “is to penalize the efforts of those engaged in political boycotts of Israel.” As the U.S. Supreme Court has made clear, the government may not place a condition on the receipt of a benefit or subsidy that is based on the recipient’s agreement to forego a constitutionally protected right.

In a time of heightened political polarization, it can be tempting for many to judge an anti-boycott law on whether it punishes a boycott campaign with which they agree or disagree. However, it is even more important in times like this to take a stand on principle to protect the constitutional right to politically motivated boycotts, which has been so pivotal to positive social change in this nation’s history.

November 2022

This is an updated version of a 2019 Current Trend on the right to boycott.

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