The movement to delegitimize and pressure Israel economically (known as Boycott, Divestment and Sanctions, or BDS) has promoted the idea that boycotts are a type of speech protected by the First Amendment. A new paper exploring the history of American boycotts disputes that claim. Historically, the paper argues, American governments had no problem requiring or prohibiting boycotts. Boycotts were treated as economic activity that governments were entitled to regulate, rather than free speech activity beyond government sanction.
In their introduction, the paper’s authors (Josh Halpern, a part-time research fellow and law lecturer at Harvard Law School, and Lavi M. Ben Dor, a 2020 graduate of the University of Pennsylvania Law School) argue:
Before the Founding, the colonists mandated a strict boycott of Britain, which local governmental bodies enforced through trial proceedings and economic punishments. At common law, courts used the doctrine of conspiracy to enjoin “unjustified” boycotts and hold liable their perpetrators. And in the modern era, state and federal officials have consistently compelled participation in the boycotts they approved (like those of apartheid-era South Africa and modern-day Russia), while prohibiting participation in the ones they opposed (like that of Israel).
As the authors correctly state, NAACP v. Claiborne Hardware Co. (1982) – perhaps the leading Supreme Court case from the perspective of BDS supporters – carefully avoided ruling on the constitutionality of boycotts themselves.
As we read the case, Claiborne Hardware reflects the potential dangers in applying the conspiracy laws to political boycotts that bundle together issue advocacy and the concerted refusal to deal. Today’s anti-boycott laws largely solve this “Claiborne Hardware problem” by focusing only on the boycott, while leaving the ancillary expression untouched.
Instead, the Court concluded that the law in question was too broad in banning boycott-related non-economic activities, like boycott-supporters meeting to express their grievances. The Supreme Court observed that states have broad power to regulate economic activity. Exactly where the line is between regulatable economic activity and a boycott protesting public policy remains unclear.
The Halpern-Ben Dor paper emphasizes that contemporary anti-BDS legislation avoids these pitfalls by surgically targeting “only… the boycott, while leaving the ancillary expression untouched.” Furthermore, the laws don’t touch purely private activity, but regulate what activities the state will contract for or subsidize. Instead, the “More than half of U.S. states” that have adopted anti-BDS laws “prohibit… public entities from investing in or contracting with companies that boycott the State of Israel.”
Halpern and Ben Dor have done a real service assembling and analyzing state and federal laws boycotting South Africa. The precedent set by these laws is likely to prove crucial in analyzing anti-BDS laws. In particular, the South Africa boycott laws provide precedent for states’ right to express their own values in deciding how to spend or invest state money in connection with a foreign country.
The authors explain:
Today’s anti-BDS laws require companies to abstain from boycotting Israel and those who do business there as a condition of eligibility for state investments and government contracts. These laws respond to the Boycott, Divestment and Sanctions (“BDS”) movement, an international effort to levy economic, political, and cultural pressure against Israel to extract policy concessions on Palestinian issues. BDS has garnered controversy for its singular focus on the Jewish State, statements by its chief architects questioning Israel’s right to exist as a Jewish state, and the transparent anti-Semitism of its historical antecedents. Since 2015, more than half of the states have passed anti-BDS rules codifying their support for Israel and their opposition to BDS’s methods and objectives.
Crucially, the article also identifies legal support for banning boycotts, as well as for laws mandating them. Examples include boycotts targeting Chinese-owned businesses and anti-union businesses. The latter won’t garner much sympathy today, but an anti-Chinese boycott in Montana was suppressed by a federal court injunction. The U.S. State Department endorsed the injunction, as the Chinese legation had supported the claim of the victims, many of whom were Chinese subjects.
One issue Halpern and Ben Dor do not address head-on in their paper is how their interpretation played out during the civil rights era. Imagine a case involving an anti-BDS law were to come before the Supreme Court. A lawyer arguing in favor of such a law should prepare to handle a question like: ‘Are you saying that the city of Montgomery could simply have passed a law outlawing the bus-boycott? That it could have forced blacks to patronize segregated buses and nipped the civil rights movement in the bud?’ Halpern and Ben Dor touch upon this a little in their discussion of the Claiborne case, but do not offer a clear answer.
That’s not to say no distinction could be drawn. Nearly all the laws banning or adopting boycotts discussed in the article concern foreign commerce or resident foreigners (with the possible exception of colonial boycotts of England, which wasn’t legally a foreign country to American colonists at the time). Conceivably, Halpern and Ben Dor could argue that federal and state governments have expanded powers to regulate commerce with non-citizens and/or non-American businesses or governments, even if they don’t possess the same rights when foreign persons and governments are not involved. Furthermore, the economic activity regulated by anti-BDS laws is states’ own activity. They involve private parties only to the extent that those parties wish to do business with the states.
The fact that boycott laws have been passed and enforced in the past does not preclude the Supreme Court from holding that they violate Constitutional principles. Nevertheless, the Halpern-Ben Dor article supports the argument that historically, boycotts and the prohibitions of them were considered to be regulatable economic activity, as opposed to a form of speech protected under the First Amendment. And, of course, they support the right of governments to regulate their own economic activity.
[Featured Image: Texas Gov Greg Abbott Signs Anti BDS Law 2017]