Nikki Haley is in the news after announcing her 2024 presidential campaign, but one of her most significant contributions to American politics has escaped mention. As governor of South Carolina in 2015, Haley signed the first-ever law preventing state contractors from boycotting Israel and those who do business with it. By signing anti-BDS (boycott, divestment, and sanctions) legislation, Haley set into motion a wave of state anti-boycott legislation that has provoked controversy for nearly a decade. Today, well more than half the states have anti-boycott laws that mirror South Carolina’s statute; several have now extended such rules to forbid boycotts of fossil fuels, firearms, and other politically contested industries.
Haley deserves credit for that effort, but progressive groups such as the ACLU and Palestine Legal have emerged as her chief antagonists. These groups insist that the anti-boycott laws are inconsistent with the “history and tradition” of the First Amendment. For the past five years, they have mounted a nationwide litigation campaign to reaffirm the putative First Amendment right to boycott.
Such claims misstate the history and tradition of boycott regulation in America, and South Carolina’s anti-BDS law is not as unprecedented as these critics suggest. In a recent paper, my coauthor, Lavi Ben Dor, and I collect historical evidence showing that, for centuries, government actors have compelled compliance with the boycotts they support, and deterring or banning participation in the boycotts they oppose. Haley’s anti-BDS law represents a continuation of that tradition, not a departure from it.
The history of boycott regulation in this country traces back to the first Continental Congress, which mandated a boycott of British goods. The colonies enforced that mandate through certification requirements, much like the ones states use to enforce anti-boycott rules today. But unlike modern states, the colonies subjected those accused of violating the boycott mandate to full-blown trials and punished violators with severe sanctions. A century later, judges employed the common law of “conspiracy” to prohibit union boycotts of Chinese-owned business, just as America demanded that Chinese authorities impose reciprocal “suppression” of consumer boycotts in China aimed at American firms. The legacy of boycott regulation is old and storied.
Boycott measures over the past 50 years follow a similar pattern. In the 1980s, states and municipalities conditioned public investment, tax benefits, and contracts on compliance with their preferred boycott policies. Companies needed to certify that they would boycott apartheid South Africa, and that they wouldn’t join the Arab League boycott of Israel.
Contemporary boycott laws fit squarely within this tradition and work the same way. Many businesses must agree to boycott Russia (over the Ukraine war), and, if they want certain government contracts, agree not to boycott Israel. For centuries, state actors have compelled and prohibited boycotts in this way, on the shared understanding that boycotts are economic conduct, not expression protected by the First Amendment. That’s the view expressed this past June by the Eighth Circuit Court of Appeals, which upheld Arkansas’s anti-BDS law by a 9–1 vote.
Despite this history, groups like the ACLU and Palestine Legal keep telling courts across the country—including the Supreme Court—that “history and tradition” confer on companies a special right to boycott Israel, free of any state-contract penalties. That strategy is designed in part to answer a fundamental difficulty with the critics’ position, which seems to treat the boycott (especially of Israel) differently than other forms of economic discrimination.
No one disputes that states have broad authority to outlaw all kinds of economic discrimination—the refusal to hire, fire, sell to, or otherwise deal with people based on protected characteristics. The ACLU, in particular, has made a mission out of defending such antidiscrimination laws against precisely the kinds of free-speech challenges that it now mounts against the anti-boycott laws. Which raises the question: Why should a “boycott”—which is, in essence, a motivated refusal to buy—be treated differently from other forms of economic discrimination? In Haley’s words, “BDS supporters single out Israel” for economic discrimination, “harken[ing] back to anti-Semitism.” Treating anti-BDS laws differently from other antidiscrimination rules would therefore seem to flout a principle of legal logic and common sense: that, as Justice Stephen Breyer once put it, “what is sauce for the goose is sauce for the gander.”
The “history and tradition” strategy offers critics a possible answer to this charge of inconsistency. Even if anti-boycott laws are conceptually indistinguishable from other forms of economic discrimination, the argument goes, America’s “history and traditions” may still carve out the political boycott for special constitutional protection.
Clever as it may seem, that strategy can’t square with the facts. History shows that states have long regulated the boycott like every other form of economic discrimination, consistent with the First Amendment. No special exception exists for anti-boycott laws, whether those laws protect Jews, fossil fuels, or firearms from economic discrimination. When it comes to antidiscrimination rules, the First Amendment doesn’t play favorites. Haley’s project rests on solid historical ground.
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