Political Nonexpenditures: "Defunding Boycotts" as Pure Speech.

• Author: Pearl, Hunter

Introduction

In 2017, the state of Arkansas enacted a statute requiring companies doing business with state entities to certify that they are not boycotting Israel. (1) In Arkansas Times LP v. Waldrip, (2) the United States District Court for the Eastern District of Arkansas considered whether the law violated the First Amendment. (3) After a brief paragraph stating that a refusal to engage in commercial dealings was not pure speech, (4) the court examined whether a boycott of Israel is expressive conduct by considering whether such a boycott is inherently expressive. (5) Finding the boycott neither pure speech nor inherently expressive conduct, the court concluded that the Arkansas law did not even implicate the First Amendment. It distinguished NAACP v. Claiborne Hardware Company, (6) in which the Supreme Court found a boycott was protected under the First Amendment, either because it involved meetings, speeches, and non-violent picketing or because it sought to vindicate domestic civil rights. (7) An Eighth Circuit panel reversed the district court, holding that the Arkansas law imposed unconstitutional conditions on government contractors because the act could apply to verbal or written speech supporting an anti-Israel boycott. (8) On rehearing en banc, the Eighth Circuit rejected the panel's reasoning and instead adopted the district court's reasoning, characterizing the boycott as unexpressive commercial conduct entitled to no First Amendment protection. (9) Beyond the Eighth Circuit, other courts considering challenges to laws targeting Boycott, Divestment, Sanctions (BDS) boycotts have concluded that the First Amendment protects BDS boycotters but have diverged in their reasoning. For example, courts have found that such laws violated protected expressive conduct without sufficient justification for those violations (10) or illicitly targeted the viewpoints behind or surrounding the boycott. (11)

Yet perhaps there is more merit to the idea of boycotts as speech-qua-speech than these judgments have considered. Starting with Buckley v. Valeo, (12) politically motivated campaign spending has been protected as pure speech, a conception that the Supreme Court brought to compelled subsidization of speech outside the campaign finance context in Janus v. American Federation of State, County, and Municipal Employees. (13) This Note argues that the Court's views on speech that developed in the campaign finance cases and Janus directly apply in the boycott context. Indeed, boycotts that target an entity based on that entity's speech on issues of political concern functionally defund those communications, so the boycotts are themselves political communications entitled to protection as speech. This understanding would extend greater First Amendment protection to these "defunding boycotts" than they might otherwise receive as expressive conduct.

Part I of this Note identifies the history of the Court's evolving conceptions of boycotts and their interactions with the First Amendment: boycotts as unlawful restraint of trade in mid-twentieth Century labor union cases, boycotts as movements with inseparable constitutionally protected elements such as speech and assembly in Claiborne Hardware, and boycotts as discreet acts that are protected only insofar as they are inherently expressive in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR). Part II introduces a different way to think about certain politically motivated purchases--political expenditure as pure speech--that developed in the campaign finance context. Finally, Part III argues that, consistent with modern First Amendment jurisprudence, the conception of political expenditure as pure speech should be applied to boycotts. This conception would bestow stronger First Amendment protection upon boycotts that aim to defund speech implicating political issues.

1. Historic Treatment of Boycotts

   1. Labor Union Cases

      First Amendment protections for boycotts have evolved over time. Although boycotting in the United States predates the Founding, (14) the use of the tactic grew in prominence in the first half of the twentieth century in the labor dispute context. (15) Labor unions' role in the national economy was a politically fraught question during this time. Indeed, unions gained significant power under the National Labor Relations Act of 1935 ("Wagner Act") but lost much of this power under the Labor Management Relations Act of 1947 ("Taft-Hartley Act"). (16) Between the passage of these two acts, the Supreme Court recognized in Thornhill v. Alabama (17) that the First Amendment's speech and press clauses protected peaceful picketing. In Thornhill, the Court struck down a state law that banned all labor picketing. (18) Only a year later, however, the Court limited Thornhill when it upheld an injunction preventing a labor union from engaging in any picketing because its boycott effort had included acts of violence and property destruction. (19)

      The Court continued to limit First Amendment protection for boycotts and picketing well into the latter half of the twentieth century. In Giboney v. Empire Storage & Ice Co., (20) the Court upheld an anti-picketing injunction because the "sole immediate purpose" of the boycott was to restrain trade in violation of state law. (21) In Hughes v. Superior Court, (22) the Court used the unlawful purpose or objectives test to uphold an anti-picketing injunction against a group trying to pressure a grocery store to hire black clerks in proportion to the racial makeup of its customer base. (23) The group's objectives did not violate any specific statutes, but the Court deferred to the California Supreme Court's finding that promoting any race-based hiring was contrary to California's general public policy. (24) In 1957, the Court upheld an injunction under a state statute that severely restricted picketing, noting that since Thornhill, the case law "established a broad field in which a State, in enforcing some public policy ... could constitutionally enjoin peaceful picketing[.]" (25)

      The Court's deference to state public policy led to a series of cases deferring to the National Labor Relations Board's ("NLRB") national authority over labor disputes. In 1959, the Landrum-Griffin Act amended the Taft-Hartley Act to make more explicit the Act's prohibition on economically pressuring an entity to "cease doing business with any other person" (26)--that is, a "secondary" boycott. (27) Although the Court interpreted the prohibition narrowly, (28) it found that the prohibition "impose[d] no impermissible restrictions upon constitutionally protected speech" when applied to picketing that "spreads labor discord by coercing a neutral party to join the fray." (29)

      This short constitutional analysis held true even when a secondary boycott was politically motivated. In International Longshoremen's Association, AFL-CIO v. Allied International, Inc., (30) the Court applied the secondary boycott provision to a union that refused to load and unload ships engaged in trade with the Soviet Union due to political disagreement with the Soviet invasion of Afghanistan. (31) The fact that the boycotter was a labor union might have led the Court to implicitly discredit the boycotter's legitimate political motivations. If the secondary boycott prohibition was meant to curb unfair competition by economic pressure designed "not to communicate but to coerce," it would be overinclusive as applied to political boycotts that are trying to communicate. The rule would also be underinclusive, because a large direct political boycott can exert just as much economic pressure as a secondary political boycott. More fundamentally, the Court did not even try to justify why First Amendment protection for boycotts should simply disappear once a certain threshold of economic pressure is crossed.

   2. Political Boycotts as Expressive Conduct

      The same year the Court decided International Longshoremen, the Court also decided NAACP v. Claiborne Hardware Co., (32) a landmark case that absorbed scholarly analysis of the First Amendment right to boycott. (33) Claiborne Hardware involved an NAACP civil rights boycott of white-owned businesses in Claiborne County, Mississippi. (34) One of the boycott's animating forces was a demand that the businesses hire black clerks and cashiers. (35) However, the "major purpose of the boycott ... was to influence governmental action." (36) The Mississippi Supreme Court had sustained the imposition of common law tort damage liability on the NAACP and individual boycott leaders for the white merchants' economic losses. (37) The Supreme Court of the United States reversed, holding that "[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself." (38)

      Although Claiborne Hardware is often cited for the proposition that all political boycotts are entitled to First Amendment protection, (39) its text supports a more limited reading. The Court in Claiborne Hardware distinguished Hughes v. Superior Court, which enjoined a similarly political boycott, by stating that the NAACP's boycott in Claiborne Hardware was not "designed to secure aims that are themselves prohibited by a valid state law." (40) The boycott in International Longshoremen, which was also politically motivated, (41) was distinguished as a secondary boycott and thus regulable as unfair competition. (42) This distinction is arguable because the lower court in Claiborne Hardware found that the boycott was a secondary boycott, a characterization the Court only meekly disputed in footnotes. (43) The more likely difference between the two cases is that the Court was more willing to allow the NLRB to regulate a union boycott in the shipping industry than it was to allow...