Marc A. Greendorfer*
40 Campbell L. Rev. 29 (2018)
At the time of this Article’s publication, twenty-four states1 (State Regulators) have enacted laws or executive orders directed at limiting state contracts with or investments in entities that engage in boycotts against Israel (State Anti-Boycott Laws). Similar in purpose to longstanding federal anti-boycott law,2 the State Anti-Boycott Laws are a legislative response to the spread of a discriminatory movement that targets one nationality, drawing American consumers and markets into a foreign conflict.3 While the State Anti-Boycott Laws are each unique, and some deal with the issue of boycotts against Israel in an indirect manner (e.g., by limiting the law’s applications to discriminatory boycotts generally rather than boycotts against Israel specifically), they all have a similar effect. The State Anti-Boycott Laws are structured to prohibit the respective State Regulators from contracting with boycotting entities and/or require the state to divest from such entities. Of the twenty-four State Regulators, twelve have enacted laws that restrict the state from contracting with boycotting entities (No Contracts Laws),4 five require the state to divest from investments in boycotting entities (Divestiture Laws),5 and seven have both No Contracts and Divestiture Laws.6
Some of the State Anti-Boycott Laws have been opposed by various groups who claim that the laws violate the First Amendment, the Commerce Clause, and the Unconstitutional Conditions Doctrine.7 The author has previously examined the question of First Amendment protections for the Boycott, Divestment, and Sanctions (BDS) Movement, finding that such protections are not applicable to BDS activity as they are for traditional political speech relating to constitutional rights of the speakers.8 This Article examines the application of the Commerce Clause and the Unconstitutional Conditions Doctrine to State Anti-Boycott Laws and demonstrates that there are no such constitutional infirmities with the laws.
Opponents of the State Anti-Boycott Laws claim that the laws are unconstitutional because boycotts against Israel are protected political speech connected to a civil rights movement.9 This premise mischaracterizes the boycott campaign and whitewashes its sordid birth and evolution. The State Anti-Boycott Laws were enacted in response to the spread of discriminatory boycotts that targeted companies doing business in Israel, often with the stated goal of eliminating the state of Israel altogether.10 This “BDS Movement” was conceived by state sponsors of terrorism as part of a plan to reinvigorate and weaponize the Arab League’s boycott of Israel and companies doing business with and within Israel, with the ultimate goal of weakening, marginalizing, and then destroying Israel.11 Far from being a civil rights movement engaged in protected political speech, the BDS Movement is an extremist tool designed to turn American commercial markets, educational institutions, and cultural establishments into a new front in a foreign conflict.12 Whether American BDS Movement supporters are aware of the true nature and goals of the movement is irrelevant to the analysis of the constitutionality of the State Anti-Boycott Laws.
This Article begins by providing a background on the emergence of State Anti-Boycott Laws. Part II of this Article explains that these laws are not susceptible to challenges under the Commerce Clause because they fit within the Market Participant Exemption. Part III explains how these laws do not violate the Unconstitutional Conditions Doctrine, principally because no protected First Amendment rights are affected by the laws and because citizens are free to continue their boycott efforts. Finally, this Article concludes that State Anti-Boycott Laws are a constitutionally valid exercise of the state’s authority to regulate its own participation in commercial markets and such choices do not violate protected constitutional rights of those engaged in BDS Movement boycotts.