More Than Two Centuries of Precedent Support Laws Protecting Israel from Boycotts

February 10, 2023 | Josh Halpern and Lavi Ben Dor
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In response to the movement to boycott, divest from, and sanction Israel (BDS), a majority of U.S. states have enacted regulations preventing public institutions from doing business with companies or individuals who discriminate against Israel by refusing to do business with it. These laws do not prohibit anyone from choosing not to buy Israeli goods, but prohibit—for instance—public schools from hiring a food-service provider that boycotts Israel. To proponents of such measures, they are merely extensions of existing anti-discrimination legislation; to their opponents, they are a dangerous attack on freedom of expression, conscience, and contract.

Against the latter view, Josh Halpern and Lavi Ben Dor note an extensive history of state and federal laws that either enforce or prohibit boycotts—and were never challenged on First Amendment grounds. The Continental Congress, in its very first session, required the various colonial governments to prohibit the sale and purchase of British goods. Over a century later, several state governments passed laws cracking down on a movement—driven by racist and anti-immigrant sentiments—to boycott Chinese-owned business. In no case, argue Halpern and Ben Dor, were these laws challenged on free-speech grounds:

Boycott measures of the past 50 years follow a . . . pattern, as governments have compelled compliance with the boycotts whose objectives they supported, while deterring or prohibiting participation in the ones they opposed. Throughout the 1980s, states and municipalities conditioned public investment, tax benefits, and contracts on compliance with the boycott of apartheid South Africa. Those same governments took the equal but opposite approach to boycotts of Israel: companies could access that same panoply of public benefits only by certifying that they would not join the boycott effort.

These modern rules are notably less severe than some of their predecessors: rather than banning or compelling boycotts outright, they simply withhold benefits from those who fail to comply with the government’s preferred boycott policy. And in doing so, they fortify the constitutional understanding, reflected throughout the country’s history, that boycotts are not speech or association and that governments enjoy broad latitude to control them, free from the constraints of the First Amendment.

Soon after the Founding, Congress—at President Thomas Jefferson’s urging—passed a succession of laws requiring Americans to boycott certain foreign nations. The Non-Importation Act prohibited Americans from importing most goods made from leather, silk, hemp, flax, tin, or flax that were made or sold in Britain. Offenders faced forfeiture of their goods and fines thrice the value of the products. [Likewise], early state governments had no compunctions about telling Americans from whom they needed to buy and when.

One especially notable example was when Henry Clay, a strong supporter of Jefferson’s Embargo Act, introduced a resolution in Kentucky requiring state legislators to wear homespun suits made in the United States and boycott those made from British broadcloth. That Clay and his fellow representatives believed they could compel Kentuckians to buy and wear American goods, and thus boycott British ones, underscores their view of the boycott and the “buycott” as economic acts, not protected expression.

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