In recent weeks, governors, mayors, major businesses, and entertainers have joined a boycott of North Carolina and Mississippi as a way of protesting new state laws that license discrimination against LGBT people. Similar boycotts of Indiana were threatened or announced last year when that state also passed homophobic legislation. Yet it’s particularly ironic that public and private actors are jumping on the boycott bandwagon to protest laws that deny fundamental civil rights when, at the same time, state legislatures are passing bills that would punish the use of economic boycotts in similar circumstances.
Boycotts are a familiar tool used by public officials and private actors to protest the passage of unjust laws. Almost every social movement has at some point deployed boycotts as a tactic to advance its political goals, along with demonstrations, picketing, strikes, sit ins, and other forms of direct action. In 1792, supporters of abolition of the slave trade in Britain urged a boycott of slave-produced sugar. In 1902, the Chinese boycotted American products to protest the extension of the Chinese Exclusion Act. In 1903, Mohandas Gandhi and other anti-colonial actors in India called for a boycott of British goods, launching the “Swadeshi” (self-sufficiency) movement. In 1955, when Rosa Parks refused to give up her seat in the “white section” of a bus in Montgomery, Alabama, she sparked the Montgomery bus boycott to protest racial segregation in public transportation and began a chain reaction of similar boycotts throughout the South.
In the 1970s and ’80s, prominent politicians on both the federal and state levels strongly endorsed a financial boycott and divestment of public funds from companies that did business in South Africa. These boycott supporters included Rep. Ronald Dellums and Sen. Ted Kennedy, who pushed for tighter economic sanctions through the Comprehensive Anti-Apartheid Act. In New York, supporters included Mayor Ed Koch, Manhattan Borough President Ruth Messinger, Comptroller Harrison Goldin, union chief Victor Gotbaum, and City Council President Carol Bellamy.
So, the turn to boycotts this month to express a commitment to fundamental civil and human rights is nothing new—except it comes at a time when several states are trying to make boycotts illegal. For example, a bill just passed by the New York State Senate bars any business, organization, or group that supports the boycott of any U.S. ally from bidding on public contracts. Moreover, it requires the state to create and make public a list of their names. If this bill becomes law, a construction company could not bid on road repair projects in New York state if its owner has personally endorsed an economic boycott of Turkey for that government’s repression of dissidents; a florist that supplies flowers to the governor’s office would be blacklisted and have its contract canceled if the owner has vocally supported a boycott of Italy for its refusal to extend marriage rights to same-sex couples; and the Presbyterian Church (USA) would be blacklisted and could no longer run homeless shelters in New York with public money because of its policy of divesting from companies involved in the demolition of Palestinian homes and the surveillance of Palestinians by the Israeli government.
The proposed New York law treats constitutionally protected political activism as treason and is part of a series of similar bills that have been introduced or passed in about two dozen states across the country. What lies behind today’s ill-conceived calls to outlaw boycotts and create what is essentially a public blacklist of groups that turn to boycotts as a political tactic?
The bills in question have been advanced by right-wing supporters of Israel who are responding to a growing grassroots campaign to use economic leverage to draw attention to human rights violations committed by the Israeli government. Israel’s defenders have resorted to anti-boycott and blacklist laws to censure political debate about the Israeli occupation of Palestine. They seek to discredit not only the arguments of their critics, but also the tactics they deploy: namely boycotts, a nonviolent form of direct political action. With a broad brush they portray boycotts as a kind of dirty trick that is subversive, sinister and slanderous in nature.
Defenders of the right to use boycotts as part of movement organizing consider the New York bill particularly worrisome in light of the law’s requirement that the state publish a list every year of organizations that have boycotted allied nations. The list is designed to send the message: “New York State won’t do business with these entities, you shouldn’t either.” For this reason, boycott proponents consider the law to require the creation of a “blacklist”—why other than public shaming would the state be required to publish these names? Through history, blacklists have been generally regarded as a form of political extortion, lying well outside the bounds of legitimate politics. Sen. Joseph McCarthy’s blacklist naming actors, activists, and others who were suspected of harboring Communist sympathies ruined lives and careers and suppressed a wide range of otherwise constitutionally protected speech.
Despite this ugly historical backdrop, lawmakers in New York and other states are itching to get into the blacklisting business. Just as in the McCarthy era, the list they want to set up would call out for sanction and ridicule citizens who engage in a familiar form of constitutionally protected speech and political activity. Under the law just passed by the New York State Senate, unions such as AFSCME, the Manhattan Borough President’s Office, and the New York City Council itself would have been blacklisted for their endorsement of the boycott of South Africa.
The frontal attack on boycotts as a political tactic made by supporters of Israel is truly ironic given the support that prominent Jewish and Zionist organizations have given to boycotts in other contexts. For instance, American Jews convinced the World Jewish Congress to endorse a resolution calling for a boycott of German goods in 1936. And when the Supreme Court considered the constitutionality of black citizens’ boycott of racist businesses in Mississippi in the 1960s, the American Jewish Congress submitted a friend of the court brief arguing that “politically motivated economic boycotts have a long and honored history in our nation,” and that boycotts “are forms of expression undoubtedly protected by the First Amendment.”
Even more ironic is the idea that supporters of Israel would turn to a blacklist, and a state-sponsored blacklist at that, to defend their cause. Blacklists in the U.S. have notoriously done the dirty work of anti-Semites, as the recent award-winning film Trumbo portrayed so painfully.
I can’t imagine that government punishing people for exercising free speech would survive any court challenge.
This history teaches us two important lessons: that there is nothing inherently sinister about the use of economic boycotts as a political tactic, and that there surely is something deeply suspect about the government’s turn to blacklists as a tool to punish, shame, and censor citizens who are engaging in important debates about Israel and Palestine.
It is unconscionable that lawmakers in New York and across the country have been aligning themselves with a smear tactic that imperils the reputations and economic well-being of constituents that they’re supposed to be representing. As legislators debate these bills, they should consider whether their moral compasses point in the direction of Joseph McCarthy or Rosa Parks.
Katherine Franke is the Sulzbacher Professor of Law at Columbia Law School and the Chair of the Board of the Center for Constitutional Rights. She is author of Wedlocked: The Perils of Marriage Equality (2015).
Michael Ratner is an attorney and President Emeritus of the Center for Constitutional Rights.