The State Power to Boycott a Boycott: The Thorny Constitutionality of State Anti-BDS Laws

Abstract

The Boycott, Divestment, Sanctions (“BDS”) Movement, a global effort to oppose the State of Israel in its actions toward Palestine, is one of the most divisive topics in global politics. Since it began in 2005, BDS has also been legally divisive in the United States. U.S. states began passing anti-BDS laws in 2015, and twenty-seven states have since passed legislation or executive orders restricting the state governments’ commercial dealings with entities that participate in BDS activities against Israel. Though the specific provisions of anti-BDS laws vary widely, they have taken two primary forms: (1) contract-focused laws that condition the receipt of government contracts on an entity certifying that it is not boycotting and will not boycott Israel; and (2) investment-focused laws that mandate public investment funds to divest from entities involved in boycotts of Israel. This Note aims to remedy the relative dearth of thorough analysis on this issue through a comprehensive study of the constitutional stakes of state anti-BDS laws. BDS activities are protected by the First Amendment under a broad interpretation of NAACP v. Claiborne Hardware. However, there are at least five distinct arguments that the anti-BDS laws merely pose “incidental infringements” on these rights, thereby rendering them constitutionally justified in light of state interests. Two of the arguments can be dismissed through appeal to Claiborne itself or related lines of case law. The three other arguments have not been adequately addressed by federal courts, such that their strength is less certain. Ultimately, many of the anti-BDS laws likely run afoul of the First Amendment by imposing unconstitutional conditions on government contractors and/or beneficiaries of public funding, though courts should take account of the full range of legal issues in disposing of suits challenging anti-BDS laws.