During the civil rights era of the 1950s-60s one of the best tools for nonviolent mass protest against the tyranny of Jim Crow was boycotts. Since that time, boycotts have remained a valued expression of moral values. Indeed, in many instances, boycotts remain the only individual or collective avenue by which to express moral convictions with any practical force against perceived tyrannical or oppressive realities.
However, the state also possesses considerable power in promoting commerce within its borders. As we have already seen, that state power can prohibit artificial barriers in commerce such as individual boycotts based on race, religion, gender, and sexual orientation. Balancing the competing interests between state power to promote commerce and expressive free association through avenues such as boycotts can be extraordinarily difficult.
An interesting test of state limits on free association has begun to play out in the courts recently over laws prohibiting the Israel Boycott, Divestment, and Sanctions (BDS) movement. For those who are unaware, the BDS movement seeks to boycott Israeli businesses as a way to pressure Israel to support a Palestinian state. Many states here in the U.S., however, have passed laws requiring contractors to refuse to join the BDS movement. As Jacob Sullum at Reason illustrates, these anti-BDS laws raise important questions regarding the permissible extent of commercial anti-discrimination laws:
If a curriculum coach in Kansas or a lawyer in Arizona has a First Amendment right to support the Palestinian cause by eschewing certain commercial relationships, shouldn’t a baker in Colorado or a photographer in New Mexico have a First Amendment right to support traditional marriage through the same peaceful means? When the right to boycott depends on the cause it serves, it is not much of a right.
Sullum raises some very interesting parallels and questions, but while it may seem counterintuitive to some, the right to free association is not necessarily diminished by a casual assessment by the state. In fact, it is my contention that execution of all First Amendment rights are subject to some degree of casual evaluation.
This is the point in the discussion when I say only time (and the courts) will tell whether Sullum or I am right. Moreover, to say this issue is complex would be an understatement.
For example, the arguments challenging the validity of anti-BDS laws rely on well-established Supreme Court precedent. However, the Court has also consistently upheld laws that are similar to anti-BDS statutes, which prohibit certain forms of social dissent including individual or group boycotts. I will be following this issue with great fascination, and truth be told, I do not think anyone can predict with any certainty how this will play out in the courts. Nevertheless, in my personal view, two casual factors rightly distinguish anti-BDS laws from other forms of permissible antidiscrimination law.
First, in cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission, the anti-discrimination laws at issue covered citizens/transactions that operated under the sole jurisdiction of the state. To me, it seems logical to conclude that the more a state’s anti-discrimination law involves purely intrastate markets and market actors the more the state has a substantial interest in making sure mutually beneficial commerce is strengthened. If the BDS movement succeeds it would primarily be a foreign nation’s economy, Israel, which would be negatively affected. Regardless of what one thinks of that outcome, when the state has less of an economic interest in certain forms of social dissent it should possess less authority to prohibit these forms of social dissent.
Second, and relating directly to my first point, the anti-BDS laws display a clearer purpose by the state to disrupt communication and specific viewpoints rather than an interest in promoting commerce. In Masterpiece, it is important to remember that both party’s viewpoints were protected by the state’s anti-discrimination laws. Discrimination based on religious view (such as homosexuality being immoral), or sexual orientation was/is not tolerated under Colorado law. With anti-BDS laws however, the state is more clearly targeting one side of a particular argument as being disfavored. The appearance of viewpoint discrimination raises more Constitutional alarms than regulation that has a more equitable economic-based motive.
Of course, just because I fall on the side of doubting whether anti-BDS laws are valid does not mean I support the BDS movement itself. In fact, I find the BDS movement’s obsessive focus on Israel rather suspect. The state of Israel, especially when compared to the rest of the region it exists within, is a beacon of freedom and tolerance. Why Israel and the BDS movement continues to receive so much attention while Saudi Arabia or China receives much less scrutiny by consumers (despite both having deeper commercial ties to the U.S. and committing far, far, far, greater atrocities and abuses to human rights) raises serious questions in my mind.
Nevertheless, since the Founding, limits on First Amendment guarantees have been consistently upheld based on casual evaluations of harm by the state. Moreover, the economic harm at issue with the BDS movement appears far more attenuated to state interests than in cases such as Masterpiece. Thus, the state should possess less of an interest to interfere. Of course, time, and people other than me or Mr. Sullum will ultimately decide this.
Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.
The Limits Of Constitutionally Guaranteed Free Association curated from Above the Law
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