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BDS and the First Amendment

Marc Greendorfer, Brandeis Blog

March 3, 2016

As part of its public relations campaign to lure unwitting American citizens into supporting unlawful activity, the BDS movement, through affiliated groups, has published a number of quasi-legal memoranda that wrongfully portray BDS support as being absolutely protected by the First Amendment. In a recently published analysis, The Lawfare Project effectively exposed the flawed and misleading BDS legal claims as they relate to New York State law.  Lawfare’s analysis also touched on the Constitutional issues that are involved, which are discussed in greater detail herein.

While commercial boycotts have a storied history in the United States, the right to boycott is not without limitation.  This is particularly true for boycotts that conflict with established government policy.

The leading case on this point is NAACP v. Claiborne Hardware Co.  In Claiborne, notwithstanding the fact that the Constitution’s Fourteenth Amendment explicitly prohibited discrimination against black Americans, local governments in certain areas of the country defied the law to perpetuate anti-black discrimination.  In response, and to apply pressure for compliance with applicable domestic anti-discrimination laws, local civil rights activists boycotted businesses that were affiliated with those engaging in discriminatory activities.

Because the boycott activity was undertaken on a local level by those directly affected by flagrant violations of enumerated Constitutional protections and federal laws, and because the boycott was directed at the local perpetrators of the violations, the Supreme Court found First Amendment protection for the boycotters. The Claiborne court was clear on why it found the boycott activity to be protected, even though it had a disruptive effect on commerce: the boycott was undertaken by those whose Fourteenth Amendment rights were being infringed and it was directed at the infringers.

Claiborne should not be taken, however, to stand for a blanket First Amendment protection for any and all boycott activity, especially that which is in contravention of United States law and policy and which has only an attenuated nexus to domestic concerns.  The mere fact that there may be some distant and speculative offshore effect on a foreign conflict from commercial coercion occasioned by boycotters who choose to agitate in United States’ commercial markets does not vest that activity with absolute First Amendment protections. The Claiborne ruling was predicated on a boycott being implemented to vindicate rights “that lie at the heart of the Fourteenth Amendment itself…to effectuate rights guaranteed by the Constitution itself.”

Those who seek to legitimize BDS activity in the United States conveniently ignore that the Claiborne Court specifically tied First Amendment protections for boycott activity to the effect that the underlying boycott would have on the assertion of Fourteenth Amendment rights of those engaging in the boycott. Whatever one may think of the conflict between Israel and Palestinian Arabs, it is not one governed by the Fourteenth Amendment or any other provision of the Constitution, and the rights of the parties involved are outside the scope and reach of United States’ laws.  Indeed, a strong case can be made that promulgation of BDS activity violates rights of Jewish and Israeli American, rights that are protected by the Fourteenth Amendment.  In addition, existing federal law prohibits support for foreign-sourced boycotts of Israel.  Thus, BDS boycott activity in the United States is not covered Claiborne’s protections.

Both Congress and the Supreme Court have followed the principle that when a boycott interferes with commerce or disrupts important policy goals of the government, the right to boycott is vulnerable to government infringement, particularly if the boycott is not in furtherance of the protection of a substantive right held by United States citizens.  The right to speech is not, by itself, a substantive right for these purposes.

Indeed, in Longshoremen v. Allied International, Inc., the Supreme Court found that boycotts that are political protests intended to punish foreign nations for their offshore conduct may be limited by the government.  The Longshoremen case was couched in facts strikingly similar to that of the illegal BDS boycotts of Israel.  At the time of the Longshoremen action, the United States was embargoing a limited number of specified goods in response to the Soviet invasion of Afghanistan.  The United States explicitly exempted all other goods from the embargo, but a rogue group of activists unilaterally attempted to expand the scope of the embargo by refusing to handle virtually all Soviet goods.

When the Supreme Court took up the case, it found that the applicable provisions of federal law prohibiting boycotts did not infringe the boycotters’ First Amendment rights.  In so finding, the Court explained “…it would seem even clearer that conduct designed not to communicate, but to coerce [commercial conduct], merits still less consideration under the First Amendment.” BDS activity is, at its core, a campaign of coercion.

It is paradoxical that BDS supporters attempt to cloak their unlawful activities with First Amendment protections using Claiborne. First, opposition to boycotts of Israel has been longstanding U.S. government policy.  Second, if there are any analogies between the facts of Claiborne and BDS activities, it would be the connection between the racist and discriminatory policies promulgated by the store owners in Claiborne and the attempts by BDS supporters to implement the same types of discriminatory policies against commerce tied to Israel (and thus, Jews) in the United States. Far from being civil rights activists, BDS is nothing more than a thinly-veiled hate group, reminiscent of those that operated in the American south at the time of Claiborne.

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