Boycotts: A First Amendment History

70 Pages Posted: 19 Dec 2022 Last revised: 22 Mar 2023

See all articles by Josh Halpern

Josh Halpern

Harvard University - Harvard Law School

Lavi Ben Dor

University of Pennsylvania Law School

Date Written: March 21, 2023

Abstract

Anti-boycott laws are more popular and pervasive today than ever before. More than half of U.S. states have “anti-BDS laws” that prohibit recipients of public contracts and state investment from boycotting the State of Israel. And almost as many have proposed or passed “anti-ESG” rules that restrict boycotts of fossil fuels, firearms, and other contested industries in similar ways. These controversial rules have triggered a fierce debate—and nationwide litigation—over whether the First Amendment includes a “right to boycott.”

This Article is the first to take up the question 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, while prohibiting participation in the ones they opposed.

The Article 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 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 minimize that problem by surgically targeting the act of boycotting while leaving regulated entities free to say whatever they please. Hence, from the standpoint of history, these laws reflect First Amendment progress, not decay.

Keywords: Constitutional Law, Legal History, First Amendment, Boycotts, BDS, Israel

Suggested Citation

Halpern, Josh and Ben Dor, Lavi, Boycotts: A First Amendment History (March 21, 2023). Harvard Journal of Law & Public Policy, Forthcoming (Vol. 47), Harvard Public Law Working Paper No. No. 23-01, Available at SSRN: https://ssrn.com/abstract=4305186 or http://dx.doi.org/10.2139/ssrn.4305186

Josh Halpern (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Lavi Ben Dor

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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