Sorry BDS, Your Boycott Isn’t Free Speech

The United States of America has a long history of treating boycotts of foreign nations not as free speech, but rather as a highly sensitive tool of statecraft reserved exclusively to the Federal Government.

Article I Section 8 of the United States Constitution contains the “Commerce Clause” which states that, “The Congress shall have Power To…regulate Commerce with foreign Nations…”  

One of the earliest applications of the Commerce Clause was the Sherman Act of 1890, which implements the Federal Government’s power to regulate activities related to commerce and to prevent “restraint of trade.”

Years after the Sherman Act, the Supreme Court held that expressive activities which impinge on constitutional powers reserved to the government are not constitutionally protected “free speech.” (United States v. O’Brien). This legal tradition eventually led to the Export Administration Act of 1979.

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The Export Administration Act implements specific laws limiting private companies and individuals from participating in boycotts, and is administered by the U.S. Office of Antiboycott Compliance (OAC). The OAC routinely acts to prevent companies from participating in private boycotts against foreign nations.  

In this sense, boycotts against foreign nations are fundamentally different from the domestic boycotts that are often remembered in connection with the American Civil Rights movement of the 1950s and 60s, such as the Montgomery Bus boycott of 1955.

A private boycott against a foreign nation is not “free speech” under American law any more than forming a private militia to launch a private war would be. Raising an army is a tool of statecraft, and a power reserved exclusively to Congress, in the very same Article 1, Section 8 of the Constitution that gives Congress exclusive control over international commerce. 

This lesson seems to be lost on members of the anti-Israel BDS group, who are complaining that a New York law limits their right to free speech. It does not. We discuss further in our article on Governor Cuomo’s anti-BDS executive order, EO 157.

To be clear, no private citizen is obligated to buy products from any particular foreign nation: that is a personal choice. Also, anyone may lobby the US government to institute a boycott at a national level: that is free speech. However, attempting to implement a private boycott against a foreign nation illegally bypasses Congress’s exclusive power to regulate foreign trade, and thus undermines the American democratic system.

The legal reality that boycotting a foreign nation does not count as free speech is an outgrowth of the U.S. Constitution itself, and part of an American legal tradition that government agencies and courts have applied with consistency over the entire lifetime of the United States of America.

Featured image: Constitution via Wikimedia Commons;

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