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12/20/2022

Josh Halpern & Lavi Ben Dor: Boycotts: A First Amendment History
Michael Ramsey

Josh Halpern (Research Fellow and Lecturer of Law, Harvard Law School) & Lavi Ben Dor (University of Pennsylvania Law School J.D. '20) have posted Boycotts: A First Amendment History (44 pages) on SSRN.  Here is the abstract:

Over the past decade, more than half of U.S. states have enacted laws that prohibit recipients of public contracts and state investment from boycotting the State of Israel. These so-called “anti-BDS laws” have triggered a debate over whether the First Amendment’s Free Speech Clause includes a “right to boycott.” This Essay is the first to take up that question thoroughly from a historical standpoint. Examining the boycott’s constitutional status from before the Founding to the present era, we find that state actors have consistently treated the boycott as economic conduct subject to governmental control, and not as expression presumptively immune from state interference. 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).

The Essay concludes that modern anti-boycott laws not only fit within, but improve upon, this constitutional tradition. As the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware illustrates, the common law approach risks violating the First Amendment if the doctrine is applied to restrict not only the act of boycotting or refusing to deal, but also the expressive activities that accompany such politically-motivated refusals. Modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please. From the standpoint of history, these laws reflect First Amendment progress, not decay.