Organized boycotts are among the most powerful means of expressing a viewpoint. Boycotts have become so prevalent and persuasive in American politics and culture that many local and state governments have adopted this form of expression as well, particularly through laws and policies that prohibit state funds from being invested in, or spent to contract with, parties whose actions the state finds objectionable. While the First Amendment status of many boycotts has been robustly covered in court opinions and scholarly works, the constitutionality of state and local governments responding in kind with their own boycotts is not as well understood.
Many commentators, and some litigants, take the position that state boycott action violates, inter alia, the Dormant Commerce Clause and the Unconstitutional Conditions Doctrine, predicated on what is often a false belief that all boycott activity by non-state actors is absolutely protected First Amendment expression.
This Article examines the intersection of state and local boycotts of boycotters, on the one hand, and the Dormant Commerce Clause and Unconstitutional Conditions Doctrine, on the other hand. One of the most contentious cases of states boycotting the boycotters involves state antidiscrimination laws designed to allow states to refuse to enter into contracts with parties engaged in organized boycotts of Israel. This Article takes an in-depth look at this particular boycott movement and state laws enacted to deal with the discriminatory intent and impact of those boycotts. It finds that states are on firm constitutional ground in enacting laws that boycott the boycotters.
Marc A. Greendorfer, Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine, 40 Campbell L. Rev. 29 (2018).