The War on the Right to Boycott Expands and Mutates
The right to boycott has been assailed since the Civil Rights movement, reaching new heights with assaults on the BDS movement and "Woke Capitalist" investment policies.
The right to boycott has been under attack for the past decade, and it took some particularly hard hits in the last year. In February, the Supreme Court refused to hear a challenge to an Arkansas anti-boycott law that singled out the BDS (Boycott, Divestment, and Sanctions) movement for Palestinian rights. In May, Senator Marco Rubio (R-FL) introduced a state’s rights bill to affirm that states may pass anti-boycott and divestment laws. Rubio broadcast the true intent of the anti-boycott bill crusaders in the title of the bill: the Combating BDS Act of 2023. Meanwhile, the fossil fuel and gun industries leaned hard into an anti-boycott campaign of their own, leading to an explosion of over 100 new bills introduced in 32 states and Congress between January and June of this year.
The Arkansas Times asked the Supreme Court to rule on the constitutionality of a state law requiring state contractors to certify that they are not and will not participate in a boycott of Israel. The newspaper didn’t intend to boycott Israel, but the editor understood the pledge to be a violation of the First Amendment. The law is similar to dozens enacted across the country since 2014 designed to undermine the BDS movement by putting restrictions on the right to boycott. By denying cert in Arkansas Times LP v. Waldrip, the Supreme Court let stand a wrongheaded circuit court ruling upholding the law. Ignoring a half century of jurisprudence recognizing boycotts as political speech protected by the First Amendment, the Supreme Court refused to comment on this outlier Eighth Circuit ruling. Elsewhere, even in conservative jurisdictions, the right to boycott has been recognized as a First Amendment right. Federal courts in Texas, Arizona and Kansas ruled against their states’ anti-B.D.S. laws. Similar to Arkansas, these bills barred the state from contracting with those who would boycott Israel.
But, the Supreme Court’s refusal to correct the record and reaffirm the right to engage in a political boycott could have far reaching implications for social justice far beyond the BDS movement, potentially depriving us of an effective tool. The timing couldn’t be worse, as right wing gladiators against ‘woke’ capitalism have recently begun a legislative campaign to protect arms manufacturers and fossil fuel companies from boycotts.
Two years ago, the rightwing organization ALEC (American Legislative Exchange Council) – which is behind many other anti-protest initiatives – drafted the Energy Discrimination Elimination Act, a model bill to restrict boycotts of energy companies. By 2021, bills were introduced in eight states and Congress to prohibit ‘discrimination’ in the form of boycotts or divestment against the gun and ammunition industries and/or oil and gas companies. In 2022, ALEC expanded on the concept and drafted a new model bill called the Eliminate Political Boycotts Act, designed to protect the oil and timber industries and fight “woke capitalism.”
But the effort really exploded this year. Seven bills have been introduced in Congress, ranging from prohibiting the federal government from entering into contracts with any entity that “discriminates against” the gun or ammo industries, to preventing government entities from investing in mutual funds that use ESG metrics in their investment strategy. ESG - environment, social, and governance standards - has been used by the financial industry for years to minimize risk and align investments with their clients’ values. None of these bills have yet been passed, but across the country, 16 states enacted 26 laws to stymie efforts to boycott or divest from guns and ammo, fossil fuels, or logging.
Boycotts are hard baked into the American DNA. The colonists launched a boycott of British tea in 1767, and we’ve been boycotting for social change and economic justice ever since. It can be an effective tactic - think of the Montgomery Bus Boycott, the UFW Grape Boycott, and the Boycott of Apartheid South Africa, to name just a few. Our right to boycott was challenged in 1969 by white merchants in Claiborne County, Mississippi, who were feeling the pinch from an NAACP-led boycott launched in 1966 demanding equality and racial justice. In 1982, the Supreme Court unanimously ruled for the NAACP, establishing that the First Amendment protects the right to boycott.
The 1982 ruling still stands. And the overwhelming majority of courts who have heard challenges to anti-BDS bills, have cited it in blocking them. Boycotts are protected by the First Amendment, and still hold an honorable place in our history. However, the current Supreme Court’s willingness to sideline itself on this issue is deeply troubling, especially as more politicians and corporations are using state legislatures to subvert our First Amendment rights.