We have previously looked at arguments made by BDSers that boycotts of Israel are considered protected free speech and any legislation against BDS is a violation of the Constitution. Both those assertions are very wrong.
I just came across a new paper that describes in much more detail why under US law, boycotting Israel is not protected by the First Amendment, as the boycotters keep claiming.
The most compelling part of the argument comes from an incident that occurred in the 1980s:
In International Longshoremen’s Association, AFL-CIO v Allied International, Inc., 17 a case that was decided little more than a month after oral arguments in Claiborne, the Supreme Court found that boycotts impeding United States commerce that are political protests intended to punish foreign nations for their offshore conduct may be limited by the government.A boycott is not speech, it is coercion.
The Longshoremen case is illustrative as it includes two important and distinct legal elements: a federal law that prohibits boycott activity (which also exists in the case of BDS Movement boycotts, in the form of the Export Administration Act) and a determination of the permissibility of such prohibition under the First Amendment.
The Longshoremen case was couched in facts strikingly similar to that of the illegal BDS Movement boycotts of Israel.18 At the time, the Soviet Union had invaded Afghanistan. In response, the United States undertook a series of boycott and embargo actions including prohibitions on the sale of certain goods to the Soviet Union.19 As part of that embargo, however, the United States explicitly exempted certain goods, including those that were to be loaded and unloaded by the union in Longshoremen.
Notwithstanding the government’s directives on the scope of the embargo, the union unilaterally expanded the embargo and instituted a blanket boycott on the handling of any and all cargo from the Soviet Union.21 The president of the union, Thomas Gleason, explained that the union felt compelled to act in contravention of the government’s foreign relations policy because “[p]eople are upset and they refuse to continue the business as usual policy as long as the Russians insist on being international bully boys.”
As a result, the union refused to handle the cargo of a company that dealt in wood products from the Soviet Union (which products were explicitly exempted from the government’s embargo).23 The boycotted company registered a complaint with the National Labor Relations Board, alleging that the union was engaging in an unlawful boycott under section 8(b)(4) of the National Labor Relations Act24 and also filed suit against the union in federal court (the suit was filed under the Labor Management Relations Act, which provided for a private right of action for victims of unlawful boycotts).25 When the Supreme Court took up the case, it decided that the applicable provisions of the National Labor Relations Act did not infringe the union’s First Amendment rights. In so finding, the Court explained:
Application of [the prohibition on boycotts] to the [union’s] activity in this case will not infringe upon the First Amendment rights of the [union] and its members. We have consistently rejected the claim that secondary picketing by labor unions in violation of [the prohibition on boycotts] is protected activity under the First Amendment. It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment. . . . There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others.26
In Longshoremen, the Supreme Court had to determine whether federal law...could restrict boycott activity in the United States without violating the First Amendment rights of the actors. It is from this general legal question that an unambiguous rule emanates: where a federal law regulates boycott activity and the purpose of that law is a legitimate expression of national policy in the realm of foreign relations and commerce, and the law does not relate to the suppression of speech on substantive matters subject to constitutional protections, the First Amendment does not protect the boycott activity.(h/t EK)
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