The Constitutional Right to Boycott

Esther Koontz is a public school educator in Wichita, Kansas. A couple years ago, she saw a presentation about Israel’s treatment of Palestinians. It struck her as unjust, and she wondered whether she should participate in the movement to boycott goods produced in Israel in hopes of pressuring it to change its policies. Then, last year, her church passed a resolution urging Mennonites like her to actively remedy injustice against both Palestinians and Israelis, in part by telling them “to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in settlements.”

That settled it: She would participate in the boycott.

Around the same time, she decided to complete a Kansas State Department of Education training program that would qualify her to make some extra money by leading professional-development sessions for the state’s math and science teachers. Almost as soon as she completed the training, she was scheduled for her first gig. But before she started, she was contacted by Melissa Fast, the state employee who leads the program. There was a bit of paperwork she had to complete.

Earlier that year, the Kansas state legislature had passed a law requiring all state contractors to sign a certification verifying that they were not boycotting Israel.   

Koontz explained that she was boycotting Israel. Fast responded that she could not pay her. Did the state’s action violate Esther Koontz’s First Amendment rights?

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In America, boycotting goods as a matter of conscience or a means of effecting change is a civic tradition so old that it predates the United States itself.

Early America’s 13 original colonies were very different from one another. “The imported British manufacturers that flooded American society during the eighteenth century acquired cultural significance largely within local communities,” the historian T.H. Been writes, “but in America something unusual occurred in the 1760s and 1770s. Parliament managed to politicize these consumer goods, and when it did so, manufactured items suddenly took on radical, new symbolic function.”

As he explains in “‘Baubles of Britain’: The American and Consumer Revolutions of the Eighteenth Century”:

People living in scattered parts of America began to communicate their political grievances through common imports. A shared framework of consumer experience not only allowed them to reach out to distant strangers, to perceive, however dimly, the existence of an ‘imagined community,’ but also to situate a universal political discourse about rights and liberties, virtue and power, within a familiar material culture. In this context, the boycott became a powerful social metaphor of resistance, joining Carolinians and New Englanders, small farmers and powerful merchants, men and women in common cause.

The tradition endured.

Before the Civil War, abolitionists boycotted goods produced with slave labor. In the 1930s, the American Jewish Congress boycotted Nazi Germany. The Civil Rights Movement used boycotts to help overthrow Jim Crow. The United Farm Workers used them in labor struggles. Anti-war activists urged boycotts of defense contractors during Vietnam. Anti-apartheid activists pressured South Africa with boycotts. History has tended to forget other bottom-up boycotts that seem morally wrongheaded in hindsight, but a long list of them would not undermine this proposition: Boycotting is 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.

This week, in Koontz v. Watson, a federal appeals court issued a ruling that advocates of broad free-speech rights can consider a resounding victory: The court granted a preliminary injunction preventing further enforcement of the Kansas law.

It flatly declared that the First Amendment protects the right to participate in a boycott. “Plaintiff’s harm stems not from her decision to refuse to sign the certification,” it reasoned, “but rather from the plainly unconstitutional choice the Kansas Law forces plaintiff to make: She either can contract with the state or she can support a boycott of Israel. Her harm is ongoing because the Kansas Law is currently chilling plaintiff’s and other putative state contractors’ speech rights.”

And while enjoining the law, the court thus “dispensed with an oft-repeated but mythical belief about free speech rights,” Glenn Greenwald observes, “namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views.”

Broadly speaking, the court’s decision in this case is likelier to be cheered by those on the left, where most of the energy behind boycotts of Israel emanate, and to be jeered by the Republicans and conservative Democrats who’ve lately pressed ahead with multiple efforts to legislate against economic boycotts of Israel.

The latter group typically eschews addressing the free-speech implications of their efforts, instead focusing on the critique that the Boycott, Divestment, and Sanctions movement, and other organized boycotts against Israel, are best understood as bigoted efforts that single out Jews, among the world’s people, for discrimination.  

In turn, boycott supporters insist that there is a distinction between discriminating against Jews as such, as members of a religious or ethnic group, and targeting companies who do business in a Jewish state to object to its political actions.

That left-right script flips in a related legal controversy.

Christian bakers have argued that they have a First Amendment right to decline to bake cakes for gay weddings, even while serving gay customers. Their critics say they are unlawfully discriminating against gays, while the bakers insist there is a clear distinction between discriminating against gays as such and declining to decorate cakes that celebrate a particular action some gay couples take. (The case also involves arguments over religious liberty.) In both cases, part of the popular controversy around what amount to boycotts of conscience turns on how the subject of the boycott is conceived.

And interestingly, the Koontz v. Watson ruling leans heavily on a Supreme Court precedent upholding a 1960s boycott effort that explicitly targeted a racial group.

As the decision puts it:

The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Company.

In Claiborne, defendants––supporters of civil rights––organized a boycott of all white merchants after city and county officials had refused defendants’ demands for racial equality. Plaintiffs––a group of white merchants––sued in Mississippi state court seeking to recover damages they had lost because of the boycott. After an eight-month trial, the judge imposed liability on the boycotters under three distinct conspiracy theories. All three sounded in state law. The state trial court also rejected the boycotters’ argument that the First Amendment prohibited the court from imposing liability on them. The Mississippi Supreme Court affirmed the trial court’s imposition of liability.

Reversing those rulings, the Supreme Court emphasized that “while states have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case.”

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Glenn Greenwald concludes his write-up of Koontz v. Watson by arguing that “the decision is significant because repressive measures like this have spread, and continue to spread, far beyond Kansas. Indeed, as we have repeatedly reported and documented, the single greatest threat to free speech in the West—and in the U.S.—is the coordinated, growing campaign to outlaw and punish those who advocate for or participate in activism to end the Israeli occupation.”

Although I share his belief that constraining the ability of U.S. citizens to boycott Israel is an affront to the Constitution, I would not describe it as “the single greatest threat to free speech,” in large part because I do not think it is possible to say that any single controversy constitutes “the greatest threat to free speech in the United States” at a given moment. As the American Civil Liberties Union has often pointed out, free speech rights are indivisible: “When we grant the government the power to suppress controversial ideas, we are all subject to censorship by the state.” Any law that compels expression or prohibits boycotts or otherwise infringes on political speech or undermines viewpoint neutrality could set a precedent that threatens every other exercise of that right.  

Hopefully, Koontz versus Watson will undercut that threat going forward.

I certainly concur with Greenwald that laws intended to constrain pro-Palestinian activists are among the significant threats to First Amendment rights, as they gain traction in red and blue states, with Republicans and Democrats.

But I also worry that cases like the Supreme Court’s forthcoming ruling on the rights of Christian bakers could conceivably expand the scope of anti-discrimination law in a way that undermines the First Amendment rights of all creative professionals who want to withhold their creative labor when they feel it would make them complicit in an institution with which they disagree and of Palestinian-rights activists who want to withhold their dollars when they feel as though it would make them complicit from an institution with which they disagree.

Already, the ACLU has departed from its longstanding logic in First Amendment cases by siding against a baker’s right to eschew participation in gay nuptials, even though, unlike in the Jim Crow South, there is neither practical inability to find alternative businesses to serve consumer needs nor a general refusal to serve an identity group as such. In so doing, they and others risk inflicting real harm on the marginalized groups, like today’s pro-Palestine activists, that benefit the most from expansive First Amendment protections. Personally, I do not boycott Israel, and I would gladly celebrate a gay wedding. But the best outcomes across such cases are judicial rulings that give maximum future cover to the marginalized groups of tomorrow whenever they engage in political expression per their consciences, whether it inclines them, left, right, or center.