Boycott Bans Are an Assault on Free Speech
A court ruling upholding an anti-BDS law in Arkansas sets a dangerous precedent.
America began with boycotts. Angry about Britain’s tax raises, the historian T. H. Breen writes, American colonists saw their refusal to purchase British goods as a “reflexive response to taxation without representation,” and their collective action helped forge an early sense of American identity as a precursor to the Revolution itself.
The Revolution-era boycotts were hardly the last American consumer protests. Abolitionists urged Americans to buy only goods produced by “free labor,” and the 20th-century civil-rights movement famously included the Montgomery bus boycott against Alabama’s segregated public-transportation system. Boycotts, as my colleague Conor Friedersdorf wrote in 2018, are “a bedrock of American civic life, inseparable from the Constitution’s guarantee of free speech and the wariness many feel whenever a law compels humans to violate their conscience.”
Boycotting as a tactic does not have a particular ideological valence. Conservatives called for a boycott of Dunkin’ Donuts over a paisley scarf they mistook for a kaffiyeh and of the shaving company Gillette for an advertisement criticizing “toxic masculinity.” In 2017, they tossed their Keurig machines out the window over that company’s decision to stop advertising on Sean Hannity’s Fox News show after he defended the Republican Senate candidate Roy Moore, who lost a close election in Alabama following revelations that he had hit on teenagers while in his 30s (conservative pundits don’t count that as “grooming,” because he is heterosexual). These probably won’t be remembered as fondly as resisting the British or undermining slavery, but the point is that there’s a boycott for people of any ideological persuasion.
Despite their historical pedigree, the Eighth Circuit Court of Appeals ruled in 2021 that boycotts are “purely commercial, non-expressive conduct.” A majority of the conservative-dominated panel—the only Democratic-appointed judge on the entire circuit dissented—concluded that an Arkansas law compelling state contractors to sign a form promising that they would not participate in the Boycott, Divestment, and Sanctions movement targeting Israel over its decades-long occupation of Palestinian territory did not violate the First Amendment. Their reasoning was that this state ban on a particular form of protest merely prohibits “purely commercial, non-expressive conduct,” blocking the signers from “economic decisions that discriminate against Israel.” The dissenting judge argued that the law was unconstitutional, noting that “by the express terms of the Act, Arkansas seeks not only to avoid contracting with companies that refuse to do business with Israel. It also seeks to avoid contracting with anyone who supports or promotes such activity.”
“I think what’s really offensive about the anti-BDS laws in particular is the way that they single out not even boycotts generally, but on this one specific issue for special penalties—I think that really gives the game away that the government is trying to suppress specific viewpoints here,” Brian Hauss, an attorney for the ACLU, which challenged the Arkansas law and several others like it, told me. “And that’s really kind of the cardinal sin when it comes to the First Amendment.”
The plaintiff in this case, The Arkansas Times, had no intention of actually boycotting Israel. “We don’t take political positions in return for advertising,” Alan Leveritt, the founder and publisher, wrote in The New York Times in 2021. “If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience.” Dozens of states have passed similar laws, requiring such pledges from professions as varied as teachers, speech therapists, and defense attorneys. One need not be a Palestinian rights advocate to understand that the state’s conditioning people’s livelihoods on the surrender of their right to protest is censorship.
There are three major arguments in favor of the bans, aside from the idea that boycotting is an “unexpressive commercial choice”: that they prohibit “national origin discrimination” against Israelis; that because governments can impose sanctions on foreign countries, they can also compel nonparticipation in a boycott; and that treating economic transactions as speech would undermine antidiscrimination laws of all kinds.
The first two points don’t hold up to scrutiny. As Hauss points out, although the laws require contractors to certify that they won’t boycott companies doing business in Israel, they do not, strictly speaking, ban discrimination on the basis of national origin—non-Israeli companies are protected and Israelis who have no business interests in Israel are not. Sanctions, which are primarily targeted at depriving the sanctioned nation of economic support, not at silencing a particular form of protest, share little in common with compelling nonparticipation in a boycott, an act clearly targeted at a particular form of speech and expression. Sanctions might prevent a committed Russophile from financially supporting Vladimir Putin’s invasion of Ukraine, but that is not their primary purpose, nor do they force individuals to sign away their right to protest the policies of a foreign nation they view as unjust.
The last point, however, is more compelling. A group of First Amendment scholars wrote a brief in favor of the Arkansas law’s constitutionality arguing that free speech does not include “liberty of contract,” and so a restaurant owner cannot refuse to serve Black customers as a protest in favor of white supremacy, nor can a cab driver refuse to drive a same-sex couple. Concluding that economic transactions are “expressive,” therefore, could undermine antidiscrimination laws. The Cornell law professor Michael Dorf, one of the brief’s co-writers, summarized the brief’s position this way: “If there is a free speech right to refuse to buy goods or services from a seller on political grounds, then there is a free speech right to refuse to buy labor on political grounds and a free speech right to refuse to sell goods or services to a buyer on political grounds.”
There are certainly activities that are purely economic and have no expressive utility. The First Amendment doesn’t protect fraud, for example (although when it comes to fossil-fuel companies, some conservatives wish it did). But boycotts are both an economic and an expressive activity, making the distinction difficult to parse. A brief submitted by the Knight First Amendment Institute dryly observes that “purchasing decisions function like campaign contributions, which similarly involve elements of both expression and association.”
If states can require contractors to disavow BDS, then they could have imposed similar restrictions related to some of the most consequential protest movements in American history, such as the Montgomery bus boycott or the anti–South African apartheid movement. The Knight Institute brief notes that upholding the Arkansas law would make it so that states “could even forbid such boycott activity outright.”
Hauss, though, argues that there is a key difference between boycotts and the forms of economic discrimination that lack constitutional protection. Antidiscrimination laws tend to ensure that businesses serve, hire, rent, or sell to all comers. But a consumer’s decision not to buy from a particular business, even for really stupid reasons like mistaking a paisley scarf for a kaffiyeh, is not the same as a landlord refusing to rent an apartment to someone because of their race or religion.
“I don’t think there’s a logical fallacy in acknowledging a consumer’s right to boycott Starbucks to protest their secular ‘holiday cups’ while denying Starbucks the right to refuse service to Christians,” Hauss told me. (Another one for the list of great American boycotts.) “There are many good reasons to treat consumers differently from other economic actors, which is why we have specialized consumer-protection laws and why antidiscrimination laws have not traditionally applied to consumer choices.”
The argument that interpreting every economic decision as “speech” could have negative implications for antidiscrimination laws is well taken. But conservative jurists are already expanding the First Amendment’s protections of freedom of worship to create exceptions to antidiscrimination law, not just for religiously affiliated institutions but for every business owner who claims that their discrimination is rooted in religion. This is the result of right-wing control over the judiciary and the direction of conservative politics; neither the text of the Constitution nor clever legal reasoning can deter it. Gutting anti-discrimination laws is a long-term legal goal of the conservative movement; one rationale for doing so is as good as another.
Neither are anti-boycott laws specific to limiting protest of Israeli policies. Americans are generally supportive of Israel, so anti-BDS legislation is a tactically clever opening, purporting to defend a religious minority against prejudice in a manner that advances the broader agenda of suppressing liberal and left-wing speech. The right-wing advocacy group ALEC has prepared model bills for state legislatures that would help them require government contractors to agree not to boycott “fossil fuel companies, big agriculture and gun manufacturers.”
If the state can isolate an act of protest that by itself might be considered “unexpressive,” and require people to forgo it as a condition of taking a government job or contract, then many other forms of protest could be included. A protest march broken down to the acts of a single individual is just a person taking a walk. A sit-in is just a person taking a seat. ACT UP’s die-ins in the ’80s were just people lying down. Any expressive act taken in concert with others can be analyzed as a single gesture that a judge could call unexpressive and therefore subject to state censorship. If one fears that upholding the right to boycott might lead to weakening of anti-discrimination law, it seems clear the slippery slope is just as steep in the other direction.
Last week, the Supreme Court unanimously refused to review the boycott case, an outcome that could reflect the Court’s view that the issue is not ripe for decision, or the fear of the three Democratic appointees that their right-wing colleagues might reach a decision even more censorious than that of the Eighth Circuit. Whatever the justices’ reasoning in this case, their inaction will encourage more efforts at censorship. The big question is simply how many of them are happy about that.
All of this is consistent with the emerging right-wing stance that freedom of speech is a right possessed only by speakers communicating conservative messages. Within this understanding of free speech, the state can ban private actors from speaking in ways the Republican Party does not like, because liberal or left-wing disapproval of conservative positions is a form of totalitarianism that must be suppressed by the state. It is therefore acceptable to impose state censorship on the “wrong” kind of political speech, while the “right” kind is protected from even private criticism.
For this reason, I hold little faith that the argument made by the First Amendment scholars in favor of upholding Arkansas’s anti-BDS law will be applied evenly. Even if such laws are found to be constitutional in some narrow, technical way, they are clearly an attempt to restrict and stigmatize left-wing ideas and arguments using state power. That is censorship, plain and simple, even if, like Texas’s abortion-bounty law, it utilizes some complex legal mechanism that protects it from the courts. The society envisioned by such devices is one in which Americans have a right to say only what conservatives wish them to say.