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Do You Have a Right to Boycott?

By Christopher Coble, Esq. on July 26, 2019

Political and economic protests can take many forms: marches, strikes, walk-outs, and sit-ins. Many of these are protected by the First Amendment's free speech provisions, but these rights are not always absolute. For example, marches and gatherings may still need to acquire the proper permits; some industry workers (like the police) are prohibited from going on strike; and a sit-in can turn into criminal trespassing.

Even boycotts -- when consumers collectively refuse to purchase products from, or do business with a manufacturer or seller they don't like -- have their legal limits. And those limits are being tested right now, in courts and in Congress.

BDS and Boycotts

The current legal kerfuffle stems from boycotts on Israel and American states' attempt to block those boycotts. Known as the BDS movement (as in Boycott, Divestment and Sanctions), the campaign promotes various forms of boycott against Israel until it withdraws from occupied territories, removes the separation barrier in the West Bank, and recognizes full equality for Arab-Palestinian citizens of Israel. Opponents call such action anti-Semitic and harmful to an American ally, while proponents say boycotts are protected speech under the First Amendment.

Some states have responded by passing laws to bar states from doing business with businesses that participate in BDS-like boycotts of Israel -- essentially boycotting the boycotters. For instance, in 2015 South Carolina passed a statute reading:

A public entity may not enter into a contract with a business to acquire or dispose of supplies, services, information technology, or construction unless the contract includes a representation that the business is not currently engaged in, and an agreement that the business will not engage in, the boycott of a person or an entity based in or doing business with a jurisdiction with whom South Carolina can enjoy open trade.

Other states have required government contractors to promise that they do not currently boycott Israel, and would not do so over the course of their contract. As the ACLU points out, federal courts have blocked these laws in three states, ruling such certifications are unconstitutional. But 26 states currently have some form of anti-boycott bill on the books.

Congressional Quarrel

The federal government is trying to get it on the act, too. Earlier this year, the Senate unsuccessfully tried to pass a law that would give states legal cover to punish companies that choose boycott Israel or Israeli-owned enterprises. Another bill, the Israel Anti-Boycott Act, also died in the Senate last year.

In response, Representatives Ilhan Omar, John Lewis, and Rashida Tlaib have introduced a resolution in the House reaffirming the First Amendment right to participate in political boycotts. That resolution is currently being considered by the House Judiciary Committee, and surely won't be the last word we hear on political boycotts and BDS.

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