Boycotts, the BDS Movement, and the
First Amendment

GENEVIEVE LAKIER
University of Chicago Law School

THE FIRST AMENDMENT LAW OF BOYCOTTS is one of the more convoluted areas in what is, in general, a very convoluted body of law. When determining what constraints the First Amendment imposes on the government when it regulates the collective refusal by consumers, producers, or workers to buy from, sell to, or work for particular companies or institutions, courts have to first determine the nature of the boycott. Is it a political boycott, and therefore entitled to significant constitutional protection against regulation? Or is it an economic boycott, entitled to very little constitutional protection? Or is it instead a labor boycott, which, under the Court’s complicated labor precedents, is subject to distinctive constitutional rules? As one might imagine, debate about the nature of the boycott in any given case tends to consume a great deal of time and attention; meanwhile the tripartite division of cases produces a body of constitutional law in which the government has sometimes extensive power to restrict boycotts, and sometimes very little power at all.

The complicated structure of the First Amendment law of boycotts reflects the Court’s recognition of the Janus-faced nature of the boycott as a tool of collective action. Boycotts can be incredibly important political tools. In a capitalist society like our own, in which the drivers of action are so often economic need and desire, the refusal to deal economically—to participate in the soft commerce of the market—can be a powerful mechanism for attracting the attention of the otherwise inattentive. And not just attention: for politically powerless actors, boycotts may be among the only viable mechanisms they possess for exerting power.  participating in a boycott may be one of the only ways in which they can exert power.  This is because, given how profoundly race, class, and geography segregate the subordinators and the subordinated in the United States, the commercial marketplace is, and has long been, perhaps a primary site—perhaps the primary site—at which members of the political community from different classes, strata, and classes interact and interdepend.  It is therefore no surprise that the boycott has been used as a weapon of anti-subordinating struggles of all kind, as a means of forcefully demonstrating the economic value that the purportedly valueless possess.

Boycotts are not only tools of anti-subordination, however. Tools of economic power, they also can be used to reinforce existing power structures, to subordinate rather than resist subordination. This is true, for example, of the anti-competitive boycotts condemned by antitrust law, in which powerful market actors agree not to deal with potential competitors, therefore reinforcing their economic position by interfering with the individualized, decentralized decisionmaking that is supposed to structure the market.

The distinction between political and economic boycotts is the means by which the Court has attempted to make doctrinal sense of the two-sided character of the boycott as an instrument of collective action. By extending considerable protection to boycotts that are intended to further promote political, social or economic change, but denying much if any protection to boycotts that are intended to shore up the economic power of their participants, First Amendment law attempts to protect kinds of collective action that play a valuable role in democratic politics, and in liberatory struggles of all kinds, without imposing too great a constraint on the government’s ability to guarantee the competitiveness of the market against coordinated economic power.

The solution is an obviously imperfect one. For one thing, it fails entirely to account for boycotts that are both political and economic—that attempt to promote the economic self-interest of their participants as a means of furthering other, more obviously political or ideological goals.  This is clearest with respect to labor boycotts and strikes, which obviously further both economic and political ends, and helps explain the Supreme Court’s deeply inconsistent treatment of different kinds of labor boycotts.  It is not only labor boycotts, however, that make evident how difficult it can be to distinguish political from economic goals. Take the boycott at issue in the 1990 Supreme Court case, FTC v. Superior Trial Lawyers Association. In that case, about 100 criminal defense lawyers in Washington D.C. agreed not to serve as public defenders in any future cases unless and until the government agreed to pay them more per case for their services. The Court concluded that the boycott was an economic one outside the protection of the First Amendment because is purpose was to increase the wages of the lawyers. But, in the eyes of its participants, the boycott was a political act, meant to ensure adequate legal representation for indigent criminal defendants. Obviously, both sides are correct: the boycott was both economic and political; by increasing their wages, the boycott participants were attempting to ensure the surely political goal of guaranteeing adequate legal representation for criminal defendants. Yet the doctrinal framework the Court applied to analyze the case allowed no recognition of this fact. The result was an unduly narrow interpretation of what it means for a boycott to be political.

Despite its imperfections, the existing doctrinal framework makes the question of the First Amendment status of the boycott, divest, and sanctions (BDS) movement against the state of Israel—and, perhaps more to the point, the many state laws that attempt to restrain it—quite easy to resolve.  There is simply no question that the goals of the movement are the kinds of overtly political goals that, under the existing precedents, a boycott needs to have in order to be entitled to the strong sunlight of full First Amendment protection. Like the civil rights activists in NAACP v. Claiborne Hardware, the purpose of the BDS movement is to bring about political, social, and economic change—in this case, to change Israeli policy towards the Palestinians—not to suppress economic competition or freeze the status quo.  This make it likely that state laws that prohibit those who wish to participate in the BDS campaign from receiving state contracts, or state investments, are unconstitutional because they condition the receipt of a government benefit on the relinquishment of a constitutionally protected right.  They are clear, even classic examples of unconstitutional conditions.

Doctrinally then, the question of whether state governments possess the power that many currently claim—to restrict participation in the BDS campaign by denying participants of benefits that others can receive—is easy to answer. They do not. This does not, of course, mean, that the decision to participate in the BDS campaign is necessarily an ethical or normatively desirable one.

Boycotts have long been fraught techniques of collective action, even when (or especially when?) their object is overtly political, because they do not rely solely, or even perhaps primarily, upon reason or persuasion to achieve their ends, but instead use the powerful stick of market power to do so. The coercive power of the boycott challenges liberal ideals of how political change is supposed to occur.

Perhaps more importantly, in order to be successful, tend to target not just the (market or government) actors who are directly responsible for the challenged bad acts; they also frequently target those who provide support or assistance, or who deal economically, with the primary culprits—“neutral parties” to use the lingo of labor law. This is as true of the BDS campaign as it was of the civil rights boycotts in the 1960s and as was true of many labor strikes before federal labor law outlawed these “secondary” boycotts. And it is, perhaps, one of the features of the BDS campaign that opponents most resent. As the labor law language suggests, boycotts of this kind challenge our understanding of what it means to be a neutral party. Are Israeli companies supporters (implicit, maybe) of Israeli human rights abuses? Are Israeli companies, Israeli universities, Israeli cultural institutions complicit in the abuse of Palestinian human rights? Supporters of the BDS movement say yes: by not resisting the policies of the Israeli government, they provide tacit support to its operations. Opponents of the BDS movement say no: and that the breadth of the BDS boycott reflects its anti-Semitic tendencies, the willingness of its participants to conflate Jewish institutions with the Jewish state.

As this example indicates, disagreement about the virtues of specific boycotts tends to reflect deeper, underlying disagreement about the relationship between state and civil society, about the appropriate mechanisms of democratic politics, and about the relationship between the political and economic realms. It reflects, more or less, disagreement about the meaning and nature of liberal democracy itself.

It is precisely for that reason that the Supreme Court has proven so unwilling to allow the government much power to reign in at least political boycotts, and why it has refused to allow a strongly rationalist or deliberative conception of democracy narrow the scope of the First Amendment’s protection. Boycotts challenge deliberative ideals of how political change in a liberal democracy is supposed to operate, but so do many of the other kinds of political expression the First Amendment protects.  This is because it is a fundamental principle of modern free speech law that it is up to the people, not the government, to decide what they think about contested normative and political questions—and this includes the contested normative question of how it is that democracy shall proceed. It is because of modern free speech law’s commitment to this basic but profoundly important principle that the BDS campaign, like any other political boycott, enjoys strong constitutional protection against government regulation, notwithstanding the myriad ways in which it may violate deliberative, liberal ideals.

Cerri Banks will appear on the panel, "Boycotts and Free Speech: BDS and Beyond," November 19, 6:00-7:30 pm.