New Scholarly Analysis Debunks Anti-Israel Boycotters’ Claim First Amendment Protects “Right” to Violate Anti-BDS Laws
States historically regulated discriminatory boycotts as economic activity, says new article.
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]
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Comments
The fact that not a single one of these “BDS” agitators has invested any time, rhetoric or agitation in calling for economic boycotts of the worst human rights abusers on planet Earth — China, Iran, and too many other Islamic states to list, here — reveals the transparent Jew-hating, Israel-slandering animus underpinning the entire movement.
California prohibits trucks registered out of state, that do not comply with California’s environmental standards, from entering the state to deliver product anywhere, including ports, or from picking up product anywhere, including ports.
This legal layman says that patently interferes with inter-state commerce but nobody has legally complained.
How come?
Because they’re treating those trucks by the same standard that they apply to local trucks. If they meet the standards they’re allowed in. They would not be allowed to apply a higher standard to foreign trucks.
And using the state’s roads is a privilege, not a right.
You do not address my point that California’s act interferes with inter-state commerce.
You’ve merely rationalized interfering with inter-state commerce.
Thanks.
I have addressed it. By subjecting the trucks to the exact same standards as domestic trucks are subjected to, there is no violation of the Dormant Commerce Clause. What “interference” are you alleging?
I think I see where you’re going wrong. You seem to think that the Dormant Commerce Clause gives interstate traffic some sort of special privilege that exempts it from state laws. That is a view the courts used to take more than a century ago.
Under that view, state prohibition of alcohol was effectively impossible, because people could simply import alcohol from the next state over, and be exempt from the local state’s laws so long as it remained in its original package. Not only could liquor stores operate with impunity, bars could operate with very little hindrance; they could sell full bottles of interstate beer and airline-sized bottles of interstate liquor, and let the customer pour it into a glass.
That’s why the temperance movement pushed so hard for the 18th amendment. The only way to prohibit alcohol in their states was to prohibit it in all states. And that’s why the 21st amendment specifically bans the transportation or importation of alcohol into a state, if it’s against that state’s laws. This was so that states that chose to remain dry could do so.
But that view of the Dormant Commerce Clause disappeared in the 1930s; for nearly the past century it has been viewed as only banning states from discriminating against interstate commerce. So long as they treat interstate commerce the same as domestic commerce, and so long as there is no comprehensive federal regulation of an industry that prohibits competing state regulation, they’re good.
Under current law it is legal for an individual to boycott black-owned stores, if he likes, but it is not legal for a business that counts as a public accommodation to do so. So the issue doesn’t arise.
But what if a state were to ban individuals from engaging in boycotts? I might argue that yes, in principle it can do that, but how would it enforce it? It’s not easy to enforce such a ban even on businesses, but it’s possible. Enforcing it against individuals seems impossibly difficult. How can you prove that the individual boycotted the bus rather than simply deciding to walk? If there were other non-boycotted buses running the same routes at the same price, then you could see whether he got on one of those instead; but without that, such a ban might be technically legal but it would not be practical.
[[[ But what if a state were to ban individuals from engaging in boycotts? I might argue that yes, in principle it can do that, but how would it enforce it? ]]]
It might be legal, but it wouldn’t be moral. The government might have an easier time preventing the coordination of a boycott — disrupting dissident coordination seems to be its top priority — but that wouldn’t be moral, either.
What has “moral” got to do with it? Whether something is moral is outside any court’s jurisdiction.
I come at this from a sightly different perspective. I’ve never been comfortable with the “public accommodation” model, that says “the day you begin make a living at something, you lose your rights to interact with other individuals in the same way you had a right to the day before.” That road leads inevitably through Lester Maddox Junction to Masterpiece Cake Terminal.
But the only thing this law says is, “the state, as a contracting entity, will not deal with other entities that conduct such-and-such boycotts.” This is easier for me to swallow, because a business deal with a state is not something you have a right to.
Notice, however, how politicians have stood our rights on their heads once again. The original rule was, “citizens (who have freedom of association) have a right to discriminate against other citizens for any reason at all, but the government does not have the right to discriminate among its citizens because ‘all men are created equal.'” We also have a basic understanding that public contracts must be open to all qualified bidders.
But what have we done now? The state can arbitrarily disqualify a bidder who is engaged in conduct which, while not illegal, is on a disapproved list. “Contrary to public policy.”
Look at that criterion (“I have a right not to deal with people who offend my sensibilities”) from 20,000 feet, imagine Lester Maddox engaged in it (well, you don’t have to imagine), and tell me what the state’s response (still) would be.
Maybe I shouldn’t be as comfortable with the boycott law after all.
Merely making a living at something doesn’t make you a public accommodation.
At least the original definition of public accommodations was businesses that have people over a barrel because they provide essential services and have no competition. So they were traditionally required to serve all comers.
There have been court decisions in recent years affirming that you have the right to advocate BDS, but not to engage in it yourself.
The same is true of any law. It is always legal to advocate breaking the law; it is not legal to act on your own advice and break it.
Private people who abhor the anti-Israel boycotts can retaliate by refusing to do business with persons or organizations that adopt the boycott. Business entities generally want consumers of all political stripes to maximize their revenue, so the wisest course for businesses is to ignore those who want boycotts. States could perhaps bar boycotts that are themselves “hate” based and make these conspiracies that are antisemitic into hate crimes (not the speech itself but the boycott economic action).