As shown by a recent study of the history of boycotts in the U.S., state regulation of economic boycotts has ample precedent.
As shown by a recent study of the history of boycotts in the U.S., state regulation of economic boycotts has ample precedent.
I n recent years, questions regarding what constitutes antisemitism have reached the forefront of our politics. This discourse is no longer confined to academia and the offices of the Anti-Defamation League. The debate has reached the halls of Congress — and, at the state level, lawmakers have pushed legislation aimed at curbing the influence of the boycott, divestment, and sanctions (BDS) movement, which singles out Israel for reproach and condemnation.
BDS, a cause célèbre of the far Left, seeks to delegitimize the Jewish state. The stated goal of the movement, which frames the Israeli presence in the West Bank as an occupation illegal under international law, is to pressure Israel to withdraw from those lands; in reality, it aims to punish Israel for policies often pursued in self-defense, isolate it from the international community, and undermine its security. In 2015, Tennessee became the first state to pass an anti-BDS law, calling the movement “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state”; the law described BDS as “deeply damaging to the causes of peace, justice, equality, democracy and human rights for all the peoples in the Middle East.” By 2021, 35 states had passed laws and resolutions or issued executive orders that ban public entities (such as state pension funds) in those states from doing business with companies that boycott Israel or that simply condemn the movement.
Anti-BDS statutes have drawn fire from Israel’s detractors and from free-speech advocates, who claim that the right to boycott is an integral component of the American experience that cannot be contravened. For instance, the ACLU asserts: “From the Boston Tea Party to the Montgomery bus boycott to the boycott of apartheid South Africa, politically motivated consumer boycotts have long been part and parcel of American politics.”
But according to a recent academic study, anti-boycott laws are nothing new either. In “Boycotts: A First Amendment History,” Josh Halpern, a research fellow and lecturer at Harvard Law School, and Lavi Ben Dor, a researcher with the University of Pennsylvania Law School, trace a consistent tradition of regulating boycotts back to before the Founding. Their essay shows that lawmakers have consistently both compelled the public to participate in boycotts whose objectives they support and prohibited participation in boycotts whose objectives they detest. Today’s anti-BDS laws fit squarely within the latter tradition.
Halpern and Ben Dor begin by recounting the history of boycotts in the United States from the days of the early republic through the mid 20th century. For much of American history, citizens were routinely compelled by local governments to stop buying from foreign merchants and only patronize domestic industry. During the latter half of the 20th century, state governments began requiring private entities to comply with the boycott of apartheid South Africa and deterred companies from joining the Arab League boycott of Israel.
Modern anti-BDS laws are far more circumscribed than their historical antecedents in that they are more targeted and the punishments for violations more tailored. Those who violate an anti-BDS statute “are not fined or otherwise subject to legal sanction,” Halpern and Ben Dor note, “but merely lose their access to certain privileges like state contracts or investments.” In an interview, Halpern noted that this is “an important feature of the constitutional conversation because governments have more latitude in how they spend their own money.” He explained that “during the heyday of the Arab League’s boycott of Israel, states like New York and Massachusetts enacted laws that were plainly designed to prevent economic discrimination against Israel and Israeli firms. The fact that those states thought that they could pass those laws without raising any constitutional issues is a good indicator that contemporary anti-BDS laws pass constitutional muster.”
Further, the authors observe that anti-BDS legislation restricts only economic activity but not more expressive forms of political activism. The 1982 Supreme Court case NAACP v. Claiborne Hardware demonstrated that states can run afoul of the First Amendment if they try to limit the expressive acts that accompany boycotts. Halpern and Ben Dor note that “modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please.” Thus, from a historical perspective, “these laws reflect First Amendment progress, not decay.”
Halpern and Ben Dor’s research indicates that boycotts can be policed in the same manner as other economic practices, and that anti-BDS laws are far less restrictive than previous anti-boycott statutes. Those who attack these laws might consider how fighting against the antisemitism that underlies BDS would be a better use of their time.