57 Colum JTransnatl L115

DATE DOWNLOADED: Tue Oct 3 10:29:24 2023
SOURCE: Content Downloaded from HeinOnline
Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.
Bluebook 21st ed.

Timothy Cuffman, The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws, 57 COLUM. J. Transnat'l L. 115 (2018).
ALWD 7th ed.

Timothy Cuffman, The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws, 57 Colum. J. Transnat'l L. 115 (2018).
APA 7th ed.

Cuffman, T. (2018). The state power to boycott boycott: the thorny constitutionality
of state anti-bds laws. Columbia Journal of Transnational Law, 57(1), 115-173.
Chicago 17th ed.

Timothy Cuffman, "The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws," Columbia Journal of Transnational Law 57, no. 1 (2018):
115-173
McGill Guide 9th ed.

Timothy Cuffman, "The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws" (2018) 57:1 Colum J Transnat'l L 115.
AGLC 4th ed.

Timothy Cuffman, 'The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws' (2018) 57(1) Columbia Journal of Transnational Law 115
MLA 9th ed.

Cuffman, Timothy. "The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws." Columbia Journal of Transnational Law, vol. 57, no. 1, 2018,
pp. 115-173. HeinOnline.
OSCOLA 4th ed.

Timothy Cuffman, 'The State Power to Boycott a Boycott: The Thorny Constitutionality
of State Anti-BDS Laws' (2018) 57 Colum J Transnat'l L 115 Please
note: citations are provided as a general guideline. Users should consult their
preferred citation format's style manual for proper citation formatting.
Provided by:
Universitat de Valencia
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
Notes
The State Power to Boycott a Boycott: The

Thorny Constitutionality of State Anti-BDS
Laws
Columbia Journal of Transnational Law

Writing Prize in Comparative and
International Law, Best Note Award
The Boycott, Divestment, Sanctions ("BDS") Move-

ment, 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 thor-

ough 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
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [57:115
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 chal-
lenging anti-BDS laws.
INTRODUCTION ............................................................................. 117

1. B A CK GROU N D ......................................................... 120
A. The Boycott, Divestment, Sanctions Movement ........... 120
B. Anti-Boycott Provisions of United States Law .............. 125
1. The Federal Anti-Boycott Regime ........................... 125
2. State Statutory Regim es ........................................... 128
II. THE FIRST AMENDMENT AND BDS .................................... 134
A. The First Amendment in General .............................. 134
B. Political Boycotts and the First Amendment:
Claiborne Hardware .................................................. 137
C. "Inherently Expressive": Whether BDS Activities
Should Receive First Amendment Protection at All ...... 139
D. "Incidental Effects": Possible Limitations to the
C laiborne H olding .......................................................... 142
1. U.S. v. O'Brien and the Doctrine of "Incidental
Infringement". .......................................................... 142
2. The State Interest in Regulating BDS Activities ...... 145
a. Anti-BDS Statutes as Anti-Discrimination
L aw s ................................................................... 14 5
b. Other Possible Justifications for Anti-BDS
S tatu te s ............................................................... 14 8
3. Possible Limitations to the Right to Participate in
BD S .......................................................................... 14 9
D. Conclusion Regarding the First Amendment
2018] STATE POWER TO BOYCOTT A BOYCOTT
Protection for BDS Activities ........................................ 161

III. THE ULTIMATE CONSTITUTIONALITY OF STATE ANTI-BDS
S TA T U TE S ......................................................................... 162
A. Contract-Focused Laws: Unconstitutional
Conditions? . . .. . . . . . . . . . . . .. . . . . . . . . .... . 162
1. The Unconstitutional Conditions Doctrine in

Gen eral ....................................................... 162
2. Unconstitutional Conditions on Pre-Existing
Governm ent Contracts ............................................. 164
3. Unconstitutional Conditions on New Contracts ....... 165
B. Investment-Focused Laws: Exceeding Limits on
Governm ent Spending9 ............................ ......................166
1. Spending Power Cases: Unconstitutional

Conditions R edux ................................................ 167
2. Foreign Divestm ent Cases ........................................ 168
C ON CLU SIO N .............................................................. 17 1
INTRODUCTION
In October 2017, the city of Dickinson, Texas, required appli-

cants for Hurricane Harvey-relief funds to certify that they "(1) do[]
not boycott Israel; and (2) will not boycott Israel" for the duration of
the agreement.1 After a public outcry, the Dickinson city attorney
claimed that the city was simply following its obligations under a
Texas statute that prohibited governmental entities from "enter[ing]
into a contract with a company', 2 unless the contract contained a writ-
ten certification like the one included in the hurricane aid applica-
tion.3 While many debated the applicability of the Texas statute,
which was seemingly targeted at businesses rather than individuals
seeking aid after a natural disaster, critics gained valuable public re-
lations fodder to oppose the increasing number of states that had en-
acted statutes similar to the one in Texas.
Just over a year prior, in June 2016, New York Governor An-
1. Kyle Swenson, This Texas Town Offers Hurricane Relief-If Your Politics Are
Right, WASH. POST (Oct. 20, 2017), https://www.washingtonpost.com/news/morning-
mix/wp/2017/10/20/texas-town-makes-hurricane-harvey-aid-applicants-pledge-not-to-
boycott-israel/ [https://perma.cc/J94C-X5QD].
2. TEX. Gov'T CODE ANN. § 2270.002 (West 2017).
3. Swenson, supra note 1.
drew Cuomo issued the following triumphant words after signing an

executive order mandating the divestment of state funds from com-
panies that participate in boycotts of Israel: "If you boycott Israel,
New York will boycott you. ' 4 Cuomo's executive order received a
significant amount of fanfare but was merely the latest in a move-
ment among states to respond through statutes and executive orders
to the growing Boycott, Divestment, Sanctions ("BDS") Move-
ment-a global effort started in 2005 that aims to boycott Israeli
goods and services, divest from Israeli companies, and advocate for
governmental sanctions against Israel. While states began passing
anti-BDS laws only as recently as 2015, twenty-seven states have al-
ready passed legislation restricting the government's contracting
and/or investments with entities that participate in BDS activities
against Israel. 5
Rightly or wrongly, a politician's positions with regard to Is-
rael have long been considered a political litmus test. 6 Many states
have written their statutes and executive orders with sensational lan-
guage so as to demonstrate their staunch support for Israel. New
York, for example, claims to "unequivocally reject[] the BDS cam-
paign and stand[] firmly with Israel, ' ' 7 while both Iowa and North
Carolina refer to BDS as a tool of "economic warfare that threaten[s]
the sovereignty and security" of Israel. s Legally, meanwhile, propo-
nents of the laws justify them as either measures to combat discrimi-
nation on the basis of ethnicity and national origin, 9 or as relatively
4. Andrew Cuomo, Gov. Andrew Cuomo: If You Boycott Israel, New York State Will
Boycott You, WASH. POST (June 10, 2016), https://www.washingtonpost.com/opinions/gov-
andrew-cuomo-if-you-boycott-israel-new-york-state-will-boycott-you/2016/06/10/ld6d3acc-
2e62-1 1e6-9b37-42985f6a265c-story.html?utm term=.8fe8ccc90dd6 [https://perma.cc/
2M77-8WXT].
5. See infra notes 58 59 and accompanying text.
6. See Bonnie Puckett Levine, The Israel Litmus Test Entrenches Anti-Israel
Narrative, ATLANTA JEWISH TIMES (Dec. 28, 2016), http://atlantajewishtimes.timesofisrael.
com/israel-litmus-test-entrenches-anti-israel-narrative/ [https://perma.cc/3KUC-XQ6Z];
Mark Oppenheimer, The Israel Litmus-Test and Scholarly Freedom, L.A. TIMES (Sept. 8,
2017), http://www.latimes.com/opinion/op-ed/la-oe-oppenheimer-myers-jewish-history-
20170908-story.html [https://perma.cc/6MMB-2TUC]; Jonathan Tobin, Steve Bannon and
the End of the Israel Litmus Test Myth, MIDA (Nov. 15, 2017), http://en.mida.org.il!
2017/11/15/steve-bannon-end-israel-litmus-test-myth/ [https://perma.cc/B3R9-2943].
7. N.Y. Exec. Order No. 157 (June 22, 2016), https://www.governor.ny.gov/
sites/governor.ny.gov/files/atoms/files/EO 157 new.pdf [https://perma.cc/76CF-UN8Y].
8. IOWA CODE § 12J.1 (2016); H.B. No. 161, Gen. Assemb. First Session (N.C. 2017)
(including this language in the legislation but omitting it upon codification).
9. See, e.g., Cuomo, supra note 4; Gilad Edelman, Cuomo and B.D.S.: Can New York
State Boycott a Boycott?, NEW YORKER (June 16, 2016), http://www.newyorker.coni
news/news-desklcuomo-and-b-d-s-can-new-york-state-boycott-a-boycott [https://perma.cc/
banal exercises10 of the government's authority to choose how to spend

public funds.
On the other side, the movement among states to "boycott the
boycotters" 1 1 has been met with intense criticism. Prominent critics
have condemned the laws for infringing on the First Amendment
rights to express political ideas and to participate in political boy-
cotts, which have a storied and successful history of achieving social
and political change in the United States. 12 However, the legal issues
are more complicated than most proponents and critics generally
suggest. The First Amendment issues swirling around the ever-
growing list of state anti-BDS statutes are "thorny," as one scholar
stated. Proponents and critics of the legislation have generally
failed to fully wrestle with the constitutional and factual implications
of anti-BDS laws. This Note aims to remedy the relative dearth of
thorough analysis on the issue through a comprehensive study of the
constitutional stakes of state anti-BDS laws.
Part I presents the background to the state anti-BDS statutes
in two stages. First, it lays out the history of the relatively recent
BDS Movement in the context of the long history of boycotts of Isra-
el. Next, it analyzes various federal and state responses to these boy-
cott movements in the United States. Part II addresses the applicabil-
29P2-CJZP] (quoting proponents of the New York anti-BDS executive order as justifying it
on grounds of anti-discrimination); Eugene Kontorovich, Anti-BDS Laws Don't Perpetuate
Discrimination. They Prevent It, JEWISH TELEGRAPHIC AGENCY (June 15, 2016),
https://www.jta.org/2016/06/15/news-opinion/opinion/anti-bds-laws-dont-perpetuate-
discrimination-they-prevent-it [https://perma.cc/F57J-XFZ5].
10. See Rosie Gray, Major Jewish Groups Won't Back Boycott Bill, BUZZFEED NEWS
(Feb. 6, 2014), https://www.buzzfeed.com/rosiegray/major-jewish-groups-wont-back-
boycott-bill?utm term=.ttqVN8BMK#.dkJN8KQYm [https://perma.cc/83QY-EJVD]
(quoting Congressman Peter Roskam as saying that boycotters "are clearly free to do what
they want to do under the First Amendment, but the American taxpayer doesn't have to
subsidize it," referring to the federal Israel Anti-Boycott Act).
11. Travis Allen, California Should Stand with Israel and Boycott the Boycotters,
WASH. EXAMINER (Mar. 29, 2016), https://www.washingtonexaminer.com/califomia-should-
stand-with-israel-and-boycott-the-boycotters [https://perma.cc/9MA2-3GVV].
12. See, e.g., Edelman, supra note 9 (quoting the New York Civil Liberties Union);
Glenn Greenwald & Andrew Fishman, Greatest Threat to Free Speech in the West:
Criminalizing Activism Against Israeli Occupation, INTERCEPT (Feb. 16, 2016),
https://theintercept.com/2016/02/16/greatest-threat-to-free-speech-in-the-west-criminalizing-
activism-against-israeli-occupation/ [https://perma.cc/TR4X-XQMV]. See also FTC v.
Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 447-48 (1990); Theresa J.
Lee, Democratizing the Economic Sphere: The Case for the PoliticalBoycott, 115 W. VA.
L. REV. 531, 538-44 (2012).
13. Edelman, supra note 9 (quoting Ronald Collins, a law professor at the University
of Washington).
ity of the First Amendment to the BDS context, including a compre-

hensive analysis of the right to boycott within Supreme Court juris-
prudence and potential limitations as applied to the BDS context.
Part III then concludes the constitutional analysis, separately consid-
ering contract-focused and investment-focused anti-BDS laws under
existing legal precedent and doctrine. Ultimately, this Note con-
cludes that many of the state anti-BDS laws are likely unconstitution-
al, at least in part, but that the laws need to be analyzed individually,
in light of both their specific provisions and the probability that they
could be successfully challenged in court. The Conclusion briefly
poses some of the variables that could be decisive-either in support
of or in challenge to the laws-in future litigation. It then examines
the stakes of such litigation for both the BDS Movement and for
many other contexts, such as consumer boycotts of multinational
corporations, the First Amendment rights of corporations in general,
and the rights of U.S. persons to express ideas in cross-border set-
tings.
I. BACKGROUND
A. The Boycott, Divestment, SanctionsMovement
Boycotts of Jewish goods and services originating in Palestine

were proposed as early as 1922,14 and such boycotts became more
widespread and formalized following the founding of the Arab
League in 1944.15 The next year, the Arab League began an exten-
sive boycott of goods and services originating in the British-
controlled territory of Mandatory Palestine, and it then directed the
boycott at Israel after the founding of the State in 1948.16 As the Ar-
ab League Boycott waned in the early 2000s, certain sectors of the
Western public, and Western academia in particular, took up the
cause of the Palestinians, in opposition to the continued construction
of Israeli settlements in the West Bank and Israel's perceived ill-
14. Kenneth Lasson, Scholarly and Scientific Boycotts of Israel: Abusing the
Academic Enterprise, 21 TOURO L. REv. 989, 995 (2006).
15. The Arab League, or League of Arab States, is an umbrella organization presently
comprising the following twenty-two Middle-Eastern and North African countries: Algeria,
Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania,
Morocco, Oman, the Palestinian Authority, Qatar, Saudi Arabia, Somalia, Sudan, Syria,
Tunisia, the United Arab Emirates, and Yemen. In November 2011, Syria's participation in
League meetings was suspended. MARTIN A. WEISS, CONG. RESEARCH SERV., RL33961,
ARAB LEAGUE BOYCOTT OF ISRAEL 1 (2017).
16. Id.
treatment of Palestinians. For example, in the spring of 2002, profes-

sors at Harvard and MIT sparked a nationwide call for American
universities to divest their endowments from Israeli-based companies
and U.S.-based companies that sell weapons to Israel. 17 Several reli-
gious organizations soon announced that they would divest from cer-
tain Israeli companies. 1 In July 2004, the divestment movement
shifted to a boycott movement, after Palestinian academics called for
an international academic boycott of Israel. 19
Building on the growing international interest in taking action
to oppose Israel's alleged violations of international law, in July
2005, more than 170 Palestinian civil society groups, led by the Pal-
estinian BDS National Committee ("the BDS Committee"), issued a
"Call for BDS," coining an acronym that stands for "Boycott, Di-
vestment, Sanctions." 20 According to the website for the BDS
Committee, the BDS Movement is committed to the principle that
"Palestinians are entitled to the same rights as the rest of humani-
ty."' 21 This principle prompts action in light of BDS's core factual
commitment: "Israel is occupying and colonising Palestinian land,
discriminating against Palestinian citizens of Israel and denying Pal-
estinian refugees the right to return to their homes. It is maintaining
a regime of occupation,
22 settler colonialism and apartheid over the
Palestinian people.
17. David H. Gellis, Faculty Urge Divestment From Israel, HARV. CRIMSON (May 6,
2002), http://www.thecrimson.com/article/2002/5/6/faculty-urge-divestment-from-israel-a/
[https://perma.cc/5CP4-3XCG]. Similar calls were soon issued at Columbia, Georgetown,
Berkeley, Yale, and Princeton, and the movement spread in the fall of 2002 to the
Universities of Maryland and Massachusetts. Lasson, supra note 14, at 990.
18. See Alan Cooperman, Israel Divestiture Spurs Clash, WASH. POST (Sept. 29,
2004), http://www.washingtonpost.com/wp-dyn/articles/A58039-2004Sep28.html [https://
perma.cc/DD62-A562]; World Council of Churches Calls for Divestment From Israel,
HAARETZ (Feb. 25, 2005), https://www.haaretz.com/1.4754393 [https://perma.cc/RRG4-
3TMH].
19. Lisa Taraki, PalestinianAcademics Call for InternationalAcademic Boycott of
Israel, ACTIVISM NEWS (July 7, 2004), https://web.archive.org/web/20050518033015/
http://right2edu.birzeit.edu/news/article178 [https://perma.cc/FVU3-SB28]. According to
law professor Kenneth Lasson, the "primary goals" of such academic boycotts against Israel
included severing relations with Israeli universities and faculty, refusing to visit Israel,
refusing to invite Israeli academics to conferences, preventing the publication of Israeli
scholars, denying recommendation to students who wish to study in Israel, and expelling
Israeli organizations from campus. Lasson, supra note 14, at 997. See also id. at 992.
20. What Is BDS?, BDS MOVEMENT, https:/Ibdsmovement.net/what-is-bds [https://
perma.cc/RQ5S-6F2Y] [hereinafter What Is BDS?].
21. Id.
22. Id.
Drawing inspiration from the South African anti-apartheid

movement in addition to "decades of Palestinian nonviolent popular
resistance ... as a means of resisting British occupation and Zionist
colonization," BDS aims to exert non-violent pressure on Israel to
"comply with international law." 2 3 In this light, BDS has three "de-
mands" for Israel:
(1) Ending [Israel's] occupation and colonization of
all Arab lands [including the West Bank, Gaza, and
the Golan Heights] and dismantling the Wall [around
Gaza;]
(2) Recognizing the fundamental rights of the Arab-
Palestinian citizens of Israel to full equality [; and]
(3) Respecting, protecting and promoting the rights of
Palestinian refugees to return to their homes and prop-
erties as stipulated in UN Resolution 194.24
With the goal of pressuring Israel to fulfill these demands, BDS em-
ploys three techniques, indicated by the name of the movement:
boycotts, divestment, and sanctions.
It is specious to conceive of the actions of "the BDS Move-
ment" as if it is a coherent, univocal movement with centralized deci-
sion-making and agency. BDS is self-consciously "grassroots," even
as it grew out of a single "call" in 2005. Attorney Marc
Greendorfer, a harsh critic of the BDS Movement, has stated that
BDS is "not an organization with a clear and identifiable body" and
,27
that it "presents a disembodied face to the world." In spite of this,
Greendorfer claimed that the BDS Movement is "nothing more than a
rebranding and refocusing of the Arab League Boycott," deliberate-
23. Id.
24. Id. One of the motivations of the U.N. General Assembly Resolution 194, passed
near the end of the 1948 Arab-Israeli War, was to define principles for the return of
displaced Palestinian refugees to their homes. This goal was never achieved.
25. See id. ("BOYCOTTS involve withdrawing support for Israel and Israeli and
international companies that are involved in the violation of Palestinian human rights, as
well as complicit Israeli sporting, cultural and academic institutions. DIVESTMENT
campaigns urge banks, local councils, churches, pension funds and universities to withdraw
investments from all Israeli companies and from international companies involved in
violating Palestinian rights. SANCTIONS campaigns pressure governments to fulfil their
legal obligation to hold Israel to account including by ending military trade, free-trade
agreements and expelling Israel from international forums such as the UN and FIFA.").
26. Id.
27. Marc A. Greendorfer, The BDS Movement: That Which We Call a Foreign
Boycott, by Any Other Name, Is Still Illegal, 22 ROGER WILLLAMS U. L. REv. 1, 19 (2017).
28. Id. at 22.
ly fashioned so as to avoid anti-boycott laws.

Whatever the case may be, the movement has had widespread
influence outside of the Middle East. The boycott has cultural, aca-
demic, and commercial components. On the cultural front, hundreds
of artists have pledged to refuse to deal professionally with Israel.29
In addition, dozens of musicians, including Lorde, 30 Thurston
Moore, 3 1 Elvis Costello, 32 and Eric Burdon, 3'have cancelled con-
certs in Israel in order to honor the call of BDS. Many other musi-
cians have cancelled concerts after receiving pressure to comply with
the boycott. 34 On the economic front, activists have waged consumer
boycotts against Israel-based and multinational corporations-in par-
ticular those that are perceived as actively facilitating Israeli settle-
ment-building-including Hewlett-Packard, which provided, among
other things, the identification system installed at Israeli military
29. See Artists' Pledge, ARTISTS FOR PALESTINE UK, https://artistsforpalestine.org.

uk/a-pledge/ [https://perma.cc/XB57-QD9P]; Endorsers, US CAMPAIGN FOR THE ACAD. &
CULTURAL BOYCOTT OF ISR., http://www.usacbi.org/endorsers/#cultural [https://perma.cc/
45QW-9WWW]; Letter: Over 100 Artists Announce a CulturalBoycott of Israel, GUARDIAN
(Feb. 13, 2015), https://www.theguardian.com/world/2015/feb/13/cultural-boycott-israel-
starts-tomorrow [https://perma.cc/4X22-39P3].
30. Itay Stem, New Zealand Singer Lorde Cancels Israel Show After BDS
Pressure (Dec. 24, 2017), HAARETZ, https://www.haaretz.com/israel-news/1.830981 [https://
perma.cc/647A-AJY8].
31. Daniel Kreps, Thurston Moore Explains Nixed Tel Aviv Gig, Israel Boycott,
ROLLING STONE (June 26, 2015), https://www.rollingstone.com/music/news/thurston-moore-
explains-nixed-tel-aviv-gig-israel-boycott-20150626 [https://perma.cc/BS4K-H6BF].
32. Vikram Dodd & Rory McCarthy, Elvis Costello Cancels Concerts in
Israel in Protest at Treatment of Palestinians, GUARDIAN (May 18, 2010), https://www.
theguardian.com/music/2010/may/18/elvis-costello-cancels-israel-concerts [https://perma.cc/
8645-4QEG].
33. Animals' Eric Burdon Caves to Threats, Cancels Israel Concert, TIMES OF ISR.
(July 23, 2013), https://www.timesofisrael.com/animals-eric-burdon-cancels-israel-concert-
amid-threats/ [https://perma.cc/PTC3-DAW8].
34. See, e.g., Or Bamea, Snoop Dogg Cancels Israeli Gig, YNET News
(July 23, 2008), https://www.ynetnews.com/articles/0,7340,L-3572077,00.html [https://
perma.cc/A8KX-QEK9] (Snoop Dogg cancelled a show in Israel in 2008, citing logistical
difficulties); Joe Coscarelli, Lauryn Hill Cancels Performance in Israel, ARTSBEAT: N.Y.
TIMES BLOG (May 4, 2015), https://artsbeat.blogs.nytimes.com/2015/05/04/lauryn-hill-
cancels-performance-in-israel/?mtrref=www.google.com [https://perma.cc/S9ZX-K46P]
(Lauryn Hill canceled a concert in Israel in 2015 after she could not schedule a separate
concert in the Palestinian territories); PharrellWilliams Cancels Israel Concert, JERUSALEM
POST (July 13, 2016), http://www.jpost.com/Israel-News/Culture/Pharrell-Williams-cancels-
Israel-concert-460270 [https://perma.cc/J27H-P3ZV] (Pharrell Williams cancelled a concert
in Israel in 2016, citing scheduling conflicts).
checkpoints; 35 Caterpillar, whose bulldozers have been used in the

demolition of Palestinian homes in the West Bank;36 G4S, a British
security company that has provided equipment for Israeli military
checkpoints and prisons; 37 and many other companies. 3 8 As one ex-
ample of the economic focus of BDS, protesters conducted a promi-
nent boycott campaign against SodaStream, which operated a factory
in the Israeli-controlled West Bank. 39 Ultimately, the company
closed the factory in 2015, moving production within Israeli territory.
BDS took credit for the move and claimed a "clear-cut" victory,
though the CEO of SodaStream claimed that BDS had only a "mar-
ginal" effect on its decision to leave the West Bank.4 °
BDS has been condemned on many fronts. In spite of BDS's
claim to be "opposed on principle to all forms of discrimination, in-
35. Thomas Lee, HP's Role in Israel Could Lead to PoliticalPressure, SFGATE (June
29, 2014, 4:32PM), https://www.sfgate.com/bayarea/article/HP-s-role-in-Israel-could-lead-
to-political-5588387.php [https://perma.cc/T42W-D5ND]; Global Campaign: Boycott HP,
BDS MOVEMENT, https://bdsmovement.net/boycott-hp [https://perma.cc/CL6B-RX3T].
36. US Bulldozer Firm in Mid-East Row, BBC (June 15, 2005, 7:35AM), http://news.
bbc.co.uk/2/hi/middle-east/3805677.stm [https://perma.cc/PRY7-VV5S]; Results for:
Caterpillar, BDS MOVEMENT, https://bdsmovement.net/tags/caterpillar [https://perma.cc/
PU9U-499Z].
37. Shane Hickey, G4S Descends into Chaos, with Nine Activists Bundled Out,
GUARDIAN (June 4, 2015, 10:34AM), https://www.theguardian.com/business/2015/jun/
04/g4s-meeting-chaos-activists-bundled-out-israel [https://perma.cc/SWG4-GLZ6]; Global
Campaign: Stop G4S, BDS MOVEMENT, https:/Ibdsmovement.net/stop-g4s [https://perma.cc/
278H-GS5N].
38. See Freedom and Justice for Gaza: Boycott Action Against 7 Complicit
Companies, BDS MOVEMENT (Aug. 15, 2014), https:/[bdsmovement.net/news/freedom-and-
justice-gaza-boycott-action-against-7-complicit-companies [https ://perma.cc/F7X5-464P].
Other boycotted companies include Veolia, Orange, CRH, Ahava, Assa Abloy, Cemex,
Heineken, Royalife, and Unilever. See Divestment: Resources, UNITED METHODISTS FOR
KAIROS RESPONSE, https://www.kairosresponse.org/divestmentandboycottwork-
examplesjan20l6.html (last visited Feb. 8, 2018) [https://perma.cc/36EV-VUDT].
39. Ashley Feinberg, Why These People Want You to Boycott SodaStream, GIZMODO
(Jan. 24, 2014, 11:00AM), https://gizmodo.com/why-these-people-want-you-to-boycott-
sodastream-1507142692 [https://perma.cc/MZG5-5C9V].
40. SodaStream Leaves West Bank as CEO Says Boycott Antisemitic and Pointless,
GUARDIAN (Sept. 2, 2015), https://www.theguardian.com/world/2015/sep/03/
sodastream-leaves-west-bank-as-ceo-says-boycott-antisemitic-and-pointless [https://perma.
cc/MWJ4-QCLW]. However, the SodaStream CEO later acknowledged that the boycotts
had some effect. David Brinn, SodaStream CEO Threatens to Close Plant ifPalestinian
Work Permits Rescinded, JERUSALEM POST (Feb. 19, 2016), http://www.jpost.com/Israel-
News/SodaStream-CEO-threatens-to-close-plant-if-Palestinian-work-permits-rescinded-
445465 [https://perma.cc/8P9K-VC3P] (quoting the company's CEO as later saying that "if
it wasn't for BDS, we might have stayed there another year or two, so it did have some
effect").
eluding anti-semitism, ' ' 4 1 many critics of BDS have alleged that the
movement is anti-semitic and racist. 4 2 Additionally, even though
BDS claims not to advocate for either a one-state or a two-state solu-
tion to the Israel-Palestine conflict, 43 some critics claim that the
movement aims to accomplish more than its three "demands"-
namely, that it aims to destroy Israel itself.44 While legal enforce-
ment related to BDS activities in the United States has generally been
restrained, Greendorfer
45 has46 argued that BDS activities violate federal
antitrust statutes, RICO, and statutes that prohibit providing mate-
rial support to terrorists. 4 While prosecution on any of these bases is
unlikely, concern about prosecution among activist communities
sympathetic to BDS has risen with recent changes in U.S. state laws
and proposals to amend U.S. federal law. 48
B. Anti-Boycott Provisions of United States Law
1. The Federal Anti-Boycott Regime
The U.S. federal government first enacted legislation relating

to the Arab League Boycott of Israel in 1959, in foreign assistance
legislation. 49 In 1977, Congress passed the most comprehensive fed-
41. What Is BDS?, supra note 20.

42. See, e.g., Alamea Deedee Bitran, Anti-Israel, a Camouflage Platform for
Antisemitism, 29 ST. THOMAS L. REV. 1, 2 (2016) (labelling BDS "antisemitism's newest
wave"); Greendorfer, supra note 27, at 32 (claiming that "the BDS Movement's aims are
rooted in racism [and] bigotry").
43. FAQs, BDS MOVEMENT, https://bdsmovement.net/faqs#collapse16233 [https://
perma.cc/J7XP-YL2J].
44. See, e.g., Greendorfer, supra note 27, at 32 ("BDS Movement's aims are rooted
in... a desire to ethnically cleanse the only non-Arab Middle Eastern state from the map.").
45. Greendorfer, supra note 27, at 101.
46. Id. at 105.
47. Id. at 132.
48. See, e.g., How the IsraelAnti-Boycott Act Threatens FirstAmendment Rights, AM.
CIvI LIBERTIES UNION (July 26, 2017, 5:00 PM), https://www.aclu.org/blog/free-speech/
how-israel-anti-boycott-act-threatens-first-amendment-rights [https://perma.cc/V7BA-PP2P]
(describing how even the threat of prosecution chills boycott activities).
49. WEISS, supra note 15, at 1. See, e.g., Mutual Security Act of 1960, 22 U.S.C. §
1750 (repealed 1961) (amending the Mutual Security Act of 1954 to declare that the
purposes of the law are "negated and the peace of the world is endangered when nations
which receive assistance under this Act wage economic warfare against other nations
assisted under this Act, including such procedures as boycotts . . " and directing the
administration of the statute to "give effect to" that principle), accessible at https://www.
gpo.gov/fdsys/pkg/STATUTE-74/pdf/STATUTE-74-Pg134.pdf [https://perma.cc/R9X6-
eral regulations of boycotts against Israel in the Export Administra-

tion Act ("EAA"). 50 The EAA authorized civil and criminal penal-
ties for any U.S. person who cooperates with a foreign country's un-
authorized boycott of any country friendly to the United States
(which implicitly included Israel, as it does today). 51 It is highly un-
likely that BDS activities fall within
52 the scope of the EAA, though
there is disagreement on this point.
In 2017, two bills were introduced in Congress that would
HWUP].
50. Export Administration Act of 1979, 50 U.S.C. § 4607(a)(1) (2012) (repealed 2018).
Since 1983, the Export Administration Act, including the foreign boycott prohibition, has
primarily persisted by way of a series of executive orders and/or presidential notices,
pursuant to the President's power under the International Emergency Economic Powers Act.
In this context, Reagan first declared the lapse of the EAA to be an international economic
emergency, and presidents have generally subsequently extended it in the same manner by
notice annually. For the most recent version of the law, see John S. McCain National
Defense Reauthorization Act, Pub. L. 115-232 §§ 1741 81 (2018), which includes the Anti-
Boycott Act of 2018, 50 U.S.C.A. § 4842 (West 2018) (containing the relevant language of
the former EAA).
51. See Anti-Boycott Act of 2018, 50 U.S.C.A. § 4842(a)(1) (West 2018).
52. In reports produced for Congress in 2017, the Congressional Research Service
twice concluded that BDS activities are outside the scope of the EAA, because the EAA only
prohibits participation in boycotts initiated or fostered by foreign countries, and no foreign
State has proclaimed that it participates in BDS. JIM ZANOTTI ET AL., CONG. RESEARCH
SERV., R44281, ISRAEL AND THE BOYCOTT, DIVESTMENT, AND SANCTIONS (BDS) MOVEMENT
12 (2017) ("Participating in the BDS movement would not appear to place a U.S.
organization in violation of existing federal antiboycott legislation."); WEISS, supra note 15,
at 8 ("To the extent a U.S. organization may participate in the BDS movement, it would not
appear to violate existing federal antiboycott legislation."). At least one extensive argument
has been made that the EAA does in fact apply to BDS activities. In a 2017 article,
Greendorfer argues that enforcing the EAA against BDS participants is "within the letter and
spirit" of the EAA. Greendorfer, supra note 27, at 97. According to Greendorfer, even if
BDS itself is not considered a "foreign country," it should be considered an "alter ego of the
member states of the Arab League Boycott," propped up to evade the EAA and other anti-
boycott laws and to "foster" the Boycott itself. Id. at 85. Greendorfer relies on the breadth
of the word "foster," such that the EAA could apply even if the boycott were not "initiated"
by the foreign country. Id. at 61. In this way, Greendorfer correctly recognizes that the
EAA is broader than others' interpretions of it (see, e.g., INT'L COMM., NAT'L LAWYERS
GUILD, IMPACT OF FEDERAL ANTI-BOYCOTT AND OTHER LAWS ON BDS CAMPAIGNS 1 (Oct.
2009) ["A boycott against the State of Israel or an Israeli company or concern would be
prohibited under the EAA only if the boycott is specifically intended to support or comply
with boycotts initiated by foreign countries."]), but he ultimately offers an implausible
analysis. While critics of BDS can present evidence that certain goals of BDS and the Arab
League Boycott overlap, the two movements are distinct in several ways, including their
origins, focus, and tactics. Furthermore, even if the EAA were construed to apply to BDS-
related boycotts, there is no indication in the EAA itself or in Greendorfer's analysis that it
would apply to divestment from Israel or campaigns to impose sanctions on Israel.
address BDS-related activities in some respects. The first, the Israel

Anti-Boycott Act, would amend the EAA to prohibit boycotts against
allies of the United States that are fostered by intergovernmental or-
ganizations, such as the United Nations or the European Union, ra-
ther than merely by foreign countries. 5 3 It is unlikely that the EAA
as amended by the Israel Anti-Boycott Act could be enforced against
BDS activists. 5 4 The second piece of proposed legislation, the Com-
bating BDS Act of 2017, would provide that state anti-BDS statutes
related to divestment or contracting are not preempted by federal
law. 55 This would effectively moot one potential challenge that had
doomed some previous state efforts to intervene in foreign affairs,
such as Massachusetts's imposition of sanctions on entities conduct-
ing business in Myanmar. W Both federal anti-BDS bills have re-
ceived significant support, but neither has been put to a vote as of
November 2018.57
53. Israel Anti-Boycott Act, S. 720, 115th Cong. (2017); Israel Anti-Boycott Act, H.R.
1697, 115th Cong. (2017).
54. The findings of the bill reveal that it is a response to the U.N. Human Rights
Council (UNHRC)'s March 2016 resolution that, among other things, requested that the
U.N. Office of the High Commissioner for Human Rights create a database of all business
enterprises that have "directly and indirectly, enabled, facilitated and profited from the
construction and growth of the Israeli settlements [in occupied territory]." Human Rights
Council Res. 31/36, U.N. Doc. A/HRC/31/L.39 (Apr. 20, 2016). The resolution was
denounced by Israel and its supporters as a "blacklist." See, e.g., The Perversity of the
Israel-Boycott Blacklist, N.Y. POST (Dec. 2, 2017), https://nypost.com2017/12/02/
the-perversity-of-the-israel-boycott-blacklist/ [https://perma.cc/F5U3-AZ49]; UN Approves
Blacklist of Companies Profiting from Settlements, TIMES OF ISR. (Mar. 24, 2016), https://
www.timesofisrael.com/un-approves-blacklist-of-companies-profiting-from-settlements/
[https://perma.cc/82MX-WUAP]; UN Blacklist: Why IsraelIs 'Doing Everything It Can' to
Thwart the Human Rights Council, HAARETZ (Nov. 26, 2017), https://www.haaretz.
comisrael-news/why-israel-is-doing-everything-it-can-to-thwart-the-unhrc- 1.5626903
[https://perma.cc/M2CF-EGBY] (quoting a U.S. State Department spokesperson as saying
that the U.S. views "that type of blacklist as counterproductive"). In spite of the bill's
insistence that the UNHRC's Resolution amounted to an "action[] to boycott, divest from, or
sanction Israel" (Israel Anti-Boycott Act, S. 720, 115th Cong. § 3(2) (2017); H.R. 1697,
115th Cong. § 3(2) (2017)) implying that the bill, if adopted as law, would apply to BDS
activities the Resolution in question cannot reasonably be construed as initiating or
fostering a boycott against Israel. However, the Act could still have an effect on BDS
activities. The ACLU fears that the bill could have a chilling effect on otherwise-lawful
BDS activities, because "[g]iven the severe penalties at stake, many people would
undoubtedly choose to refrain rather than risk prosecution." ACLU, supra note 48.
55. Combating BDS Act of 2017, S. 170, 115th Cong. (2017); Combating BDS Act of
2017, H.R. 2856, 115th Cong. (2017).
56. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).
57. See Actions, S.720 - Israel Anti-Boycott Act, CONGRESS.GOV, https://www.
congress.gov/bill!115th-congress/senate-bill!720/actions [https://perma.cc/528B-VDV2];
2. State Statutory Regimes
Perhaps due to the mismatch between existing federal anti-

boycott laws and the growing BDS Movement, beginning in 2015,
U.S. state legislatures began proposing and enacting anti-BDS legis-
lation of their own. To date, twenty-three states have passed anti-
BDS statutes, while four additional states have issued executive or-
ders targeting BDS activity.5 9 While only slightly more than half the
fifty states have formally taken action against BDS to date, condem-
nation of BDS at the state level appears to transcend partisan affilia-
tion and geography. To illustrate, as of May 2017, all fifty state gov-
ernors and the mayor of Washington, D.C., had signed on to an
initiative sponsored by the American Jewish Committee entitled
"Governors United Against BDS," condemning BDS ' 60 as "incompati-
ble with the values of our states and our country."
Actions, S.170 - Combating BDS Act of 2017, CONGRESS.GOV, https://www.congress.

gov/bill/115th-congress/senate-bill/170/actions [https://perma.cc/A885-LCKH].
58. Alabama, ALA. CODE § 41-16-5 (2016); Arizona, ARIZ. REV. STAT. ANN. §§ 35-
393.00 to 35-393.03 (2016); Arkansas, ARK. CODE ANN. §§ 25-1-503 to 25-1-504 (2017);
California, CAL. PUB. CONT. CODE § 2010 (2017); Colorado, COLO. REV. STAT. § 24-54.8-
201 (2016); Florida, FLA. STAT. §§ 215.4725, 287.135 (2016); Georgia, GA. CODE ANN.
§ 50-5-85 (2016); Illinois, 40 ILL. COMP. STAT. 5/1-110.16 (2016); Indiana, IND. CODE ANN.
§§ 5-10.2-11-1 to 5-10.2-11-26 (2016); Iowa, IOWA CODE §§ 12J.1-.4 (2016); Kansas, KAN.
STAT. ANN. §§ 75-3740e f (2017); Michigan, MICH. COMP. LAWS ANN. §§ 18.1241c,
18.1261 (2016); Minnesota, MINN. STAT. § 3.226 (2017); Nevada, NEV. REV. STAT.
§§ 332.065(2), 355.300 to 355.350 (2018); New Jersey, N.J. STAT. ANN. § 52:18A-89.14
(2016); North Carolina, N.C. GEN. STAT. §§ 147-86.80 to 147-86.84 (2017); Ohio, OHIO
REV. CODE ANN. § 9.76 (2016); Pennsylvania, 62 PA. STAT. AND CONS. STAT. ANN. §§ 3601-
06 (2016); Rhode Island, R.I. GEN. LAWS §§ 37-2.6-1 to 37-2.6-4 (2016); South Carolina,
S.C. CODE ANN. § 11-35-5300 (2015); Tennessee, S.J. Res. 170, 109th Gen. Assemb. (Tenn.
2015); Texas, TEX. GOV'T CODE §§ 2270.001 to 2270.002, §§ 808.001 .102 (2017);
Virginia, H.J. Res. 177, Reg. Sess. (Va. 2016).
59. Louisiana, La. Exec. Order No. JBE 2018-15 (May 22, 2018), accessible at
https://staticl .squarespace.com/static/548748b1e4b083fc03ebf70e/t/5b2426321ae6cf4fO653
alf2/1529095730934/JBE+18+-+15+-+Boycotts+of+Isreal+%281%29.pdf [https://perma.
cc/59R9-K8HV]; Maryland, Md. Exec. Order No. 01.01.2017.25 (Oct. 23, 2017), accessible
at http://mgaleg.maryland.gov/pubs/legislegal/2017-executive-orders.pdf [https://perma.cc/
YZ9B-GPQ2]; New York, N.Y. Exec. Order No. 157 (June 22, 2016), accessible at
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO 157 new.pdf
[https://perma.cc/GL8F-K9M2]; Wisconsin, Wisc. Exec. Order No. 261 (Oct. 27, 2017),
accessible at https://walker.wi.gov/sites/defadlt/files/executive-orders/EO%20%23261_0.pdf
[https://perma.cc/L54F-BXVC].
60. See All 50 Governors Sign Anti-BDS Statement, JEWISH TELEGRAPH AGENCY (May
17, 2017), https://www.jta.org/2017/05/17/top-headlines/all-50-governors-sign-anti-bds-
statement [https://perma.cc/L5AF-JDL4]; Governors United Against BDS, AM. JEWISH
COMM., https://www.ajc.org/governors [https://perma.cc/8YS8-L4WB]. The full text of the
There is wide variation in state anti-BDS laws, including dif-

ferences in the form of the laws, the activities targeted, the geograph-
ic scope of the targeted activities, and the supplemental limitations
and provisions of each law. Some of these differences are legally ir-
relevant, while many of them are deeply relevant to, or even determi-
native of, the constitutionality of the respective laws.
a. Form
State anti-BDS laws have taken three broad forms:

(1) Symbolic resolutions condemn BDS but have no
binding effect.
(2) Investment-focused laws require state pension
funds and other public investments to divest from
and/or refrain from investing in entities that partici-
pate in some specified conduct (e.g., refusing to con-
duct business) with regard to Israel. All of the in-
vestment-focused laws require that some state entity
produce a list of entities from which the funds must
divest.
(3) Contract-focusedlaws prohibit public entities from
conducting business with entities that participate in
some specified conduct (e.g., refusing to conduct
business) with regard to Israel. Contract-focused laws
typically require companies to certify during the bid-
ding process that they are not engaged in a boycott of
Israel and they will not engage in a boycott of Israel
for the duration of the contract.
61
As of November 2018, twenty states have contract-focused laws,
Governors United Against BDS statement is available at https://www.ajc.org/sites/

default/files/pdf/2017-09/GOVERNORSAGAINSTBDSSTATEMENT.PDF [https://
perma.cc/6NYS-QBWM].
61. Alabama, ALA. CODE § 41-16-5 (2016); Arizona, ARIZ. REV. STAT. ANN. §§ 35-
393.00 to 35-393.03 (2016); Arkansas, ARK. CODE ANN. § 25-1-503 (2017); California, CAL.
PUB. CONT. CODE § 2010 (2017); Florida, FLA. STAT. § 287.135 (2016); Georgia, GA. CODE
ANN. § 50-5-85 (2016); Iowa, IOWA CODE §§ 12J.1 to 12J.4 (2016); Kansas, KAN. STAT.
ANN. §§ 75-3740e f (2017); Louisiana, La. Exec. Order No. JBE 2018-15 (May 22, 2018);
Maryland, Md. Exec. Order No. 01.01.2017.25 (Oct. 23, 2017); Michigan, MICH. COMP.
LAWS ANN. §§ 18.1241c, 18.1261 (2016); Minnesota, MINN. STAT. § 3.226 (2017); Nevada,
NEv. REV. STAT § 332.065(2) (2018); North Carolina, N.C. GEN. STAT. § 147-86.80 to 147-
86.84 (2017); Ohio, OHIO REV. CODE ANN. § 9.76 (2016); Pennsylvania, 62 PA. STAT. AND
CONS. STAT. ANN. § 3601-06 (2016); Rhode Island, R.I. GEN. LAWS §§ 37-2.6-1 to 37-2.6-4
(2016); South Carolina, S.C. CODE ANN. § 11-35-5300 (2015); Texas, TEx. GOv'T CODE §§
and twelve states have investment-focused laws. 6 2 Of these, seven

states have both contract- and investment-focused laws. 63 Tennessee
and Virginia are currently the only states that condemn BDS with
symbolic resolutions and that do not supplement their condemnations
with restrictions on government contracting or investment. 64
b. TargetedActivities
States vary widely in terms of the actions that trigger manda-

tory divestment and/or prohibitions on contracting. Typically, anti-
BDS statutes prohibit specified contractual or investment relations
with entities that engage in "boycotts" of Israel, but they define
"boycott" broadly. For example, Arizona's statute defines "boycott"
as "engaging in a refusal to deal, terminating business activities or
performing other actions that are intended to limit commercial rela-
tions ..... This provision extends far beyond the standard diction-
ary definition of "boycott," which would merely encompass a refusal
to deal, 66 though the precise limits of the statutory prohibition are not
clear.
In their definitions of the targeted activities, only nine state
67
laws explicitly mention "divestment," or some variant thereof,
2270.001 to 2270.002 (2017); and Wisconsin, Wisc. Exec. Order No. 261 (Oct. 27, 2017).
62. Arizona, ARIZ. REV. STAT. ANN. §§ 35-393.00 to 35-393.03 (2016); Arkansas,
ARK. CODE ANN. § 25-1-504 (2017); Colorado, COLO. REV. STAT. §§ 24-54.8-201 to 24-
54.8-204 (2016); Florida, FLA. STAT. § 215.4725 (2016); Illinois, 40 ILL. COMP. STAT. 5/1-
110.16 (2016); Indiana, IND. CODEANN. §§ 5-10.2-11-1 to 5-10.2-11-26 (2016); Iowa, IOWA
CODE §§12J.1 to 12J.4(2016); Nevada, NEV. REV. STAT. §§ 355.300 to 355.350 (2018); New
Jersey, N.J. STAT. ANN. § 52:18A-89.14 (2016); New York, N.Y. Exec. Order No. 157 (June
22, 2016); North Carolina, N.C. GEN. STAT. §§ 147-86.80 to 147-86.84 (2017); and Texas,
TEX. GOV'T CODE §§ 808.001 to 808.102 (2017).
63. Arizona, ARIZ. REV. STAT. ANN. §§ 35-393.00 to 35-393.03 (2016); Arkansas,
ARK. CODE ANN. §§ 25-1-503 to 25-1-504 (2017); Florida, FLA. STAT. § 215.4725 (2016);
Iowa, IOWA CODE §§ 12J.1 to 12J.4 (2016); Nevada, NEV. REV. STAT. § 332.065(2) (2017);
North Carolina, N.C. GEN. STAT. §§ 147-86.80 to 147.86.84 (2017); and Texas, TEX. GOV'T
CODE §§ 2270.001 to 2270.002, §§ 808.001 to 808.102 (2017).
64. S.J. Res. 170, 109th Gen. Assemb. (Tenn. 2015); H.J. Res. 177, 2016 Sess. (Va.
2016).
65. Arizona, ARIZ. REV. STAT. ANN. § 35-393 (2016) (emphasis added).
66. For example, Merriam-Webster defines "boycott" in the following way: "to
engage in a concerted refusal to have dealings with (a person, a store, an organization, etc.)
usually to express disapproval or to force acceptance of certain conditions." Boycott,
MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/
dictionary/boycott [https://perma.cc/42H4-Z2UW].
67. Alabama, ALA. CODE § 41-16-5(a)(1) (2016); Colorado, COLO. REV. STAT. § 24-
while only three state laws explicitly mention "sanctions. ' 6 8 Accord-
ingly, many state laws do not obviously apply to two of the three
techniques employed by the BDS Movement. However, divestment
could fall within the broad definitions of "boycott" of many of the
statutes, even if the definitions do not explicitly cover such conduct.
For example, with regard to the Arizona statute quoted above, a U.S.
corporation divesting itself of stock in an Israeli company could be
considered "terminating business activities" or "limit[ing] commer-
cial relations," ' 69 such that the statute's definition of "boycott" could
also preclude the state government from contracting with the divest-
ing company.
In the four state laws that explicitly mention "sanctions," the
specific language regarding sanctions is not written in a way that
would be enforceable against a business. For example, Colorado's
anti-BDS statute regulates "economic prohibitions against Israel,"
which it defines to mean, in relevant part, "engaging in ...[the] im-
position of sanctions on the state of Israel. ,,70 Insofar as it would be a
government or some intergovernmental entity that would actually
impose the sanctions rather than the company itself, it is unclear how
a company could possibly engage in imposing sanctions on Israel
without also engaging in protected speech. If states were to instead
prohibit advocacy for governments to impose sanctions on Israel,
then there could be a relatively straightforward First Amendment vio-
lation, as a suppression of pure political speech. 7 1 Furthermore, un-
like the broader scope of divestment, advocating for sanctions would
probably not fall within the statutory scope of "boycott," in part be-
54.8-201(3) (2016); Indiana, IND. CODE ANN. § 5-10.2-11-3 (2016); Louisiana, La. Exec.
Order No. JBE 2018-15 (May 22, 2018); Michigan, MICH. COMp. LAWS ANN.
§ 18.1261(14)(b) (2016); New York, N.Y. Exec. Order No. 157(J)(B) (June 22, 2016);
Pennsylvania, 62 PA. STAT. AND CONS. STAT. ANN. § 3603 (2016); Rhode Island, R.I. GEN.
LAWS § 37-2.6-2(a)(1) (2016); South Carolina, S.C. CODE ANN. § 11-35-5300(b)(1) (2015).
Cf New Jersey, N.J. STAT. ANN. § 52:18A-89.14(e) (2016) (defining "divestment" but
targeting only boycott actions, not divestment actions). Note that some statutes use the verb
"divest" rather than the noun "divestment."
68. Colorado, COLO. REv. STAT. § 24-54.8-201(3) (2016); Indiana, IND. CODE ANN.
§ 5-10.2-11-3 (2016); New York, N.Y. Exec. Order No. 157(I)(B) (June 22, 2016). Cf New
Jersey, N.J. STAT. ANN. § 52:18A-89.14(e) (2016) (defining "sanctions" but targeting only
boycott actions, not actions to promote sanctions).
69. Arizona, ARIZ. REv. STAT. ANN. § 35-393 (2016).
70. COLO. REV. STAT. § 24-54.8-201(3) (2016).
71. See Mills v. Alabama, 384 U.S. 214, 218 (1966) ("Whatever differences may exist
about interpretations of the First Amendment, there is practically universal agreement that a
major purpose of that Amendment was to protect the free discussion of governmental
affairs.").
cause it does not directly limit business dealings with that country,
even if it could have that effect if sanctions were actually imposed.
c. GeographicScope
State anti-BDS laws vary in terms of the geographic scope of

the conduct that triggers divestment or prohibitions on contracting.
Four U.S. state laws merely apply to boycotts of "Israel," without
specifying whether or not "Israel" includes the West Bank, Gaza, and
the Golan Heights.7 2 Fourteen states explicitly refer to boycotts of
the "territories controlled by Israel," or some variant thereof, in addi-
73
tion to Israel itself, as conduct falling within the scope of the laws.
Four state laws refer to "a jurisdiction with whom this state [or the
United States] can enjoy open trade," or some variant thereof, which
implies both Israel and the occupied/controlled territories, both of
which are eligible trading partners for the United States and all fifty
states.74 In addition, Michigan regulates boycotts of a "strategic
partner," with reference to a federal law that explicitly relates to the
State of Israel.75 Lastly, California's statute refers to "any sovereign
nation or peoples recognized by the government of the United
States," which is ambiguous, but probably excludes the occu-
pied/controlled territories.
72. Arkansas, ARK. CODE ANN. §§ 25-1-503 to 25-1-504 (2017); Minnesota, MINN.
STAT. § 3.226 (2017); New York, N.Y. Exec. Order No. 157 (June 5, 2016); Wisconsin,
Wisc. Exec. Order No. 261 (Oct. 27, 2017).
73. Arizona, ARIZ. REV. STAT. ANN. §§ 35-393 (2016); Florida, FLA. STAT.
ANN. § 215.4725 (2016); Georgia, GA. CODE ANN. § 50-5-85 (2016); Illinois, 40 ILL. COMP.
STAT. ANN. 5/1-110.16 (2016); Indiana, IND. CODE ANN. §§ 5-10.2-11-3 (2016); Iowa, IOWA
CODE §§ 12J.1 (2016); Kansas, KAN. STAT. ANN. §§ 75-3740e f (2018); Louisiana, La.
Exec. Order No. JBE 2018-15 (May 22, 2018); Maryland, Md. Exec. Order No.
01.01.2017.25 (Oct. 23, 2017); Nevada, NEv. REV. STAT. 332.065(5), 355.305 (2018); New
Jersey, N.J. STAT. ANN. § 52:18A-89.14 (2016); North Carolina, N.C. GEN. STAT.
§§ 147-86.80 (2017); Ohio, OHIO REv. CODE ANN. § 9.76 (2016); Texas, TEX. GOV'T CODE
§ 808.001 (2017).
74. Alabama, ALA. CODE § 41-16-5 (2016); Pennsylvania, 62 PA. STAT. AND CONS.
STAT. ANN. § 3604 (West 2016); Rhode Island, R.I. GEN. LAWS § 37-2.6-3 (2016); South
Carolina, S.C. CODE ANN. § 11-35-5300 (2015).
75. MICH. COMP. LAWS ANN. §§ 18.1241c, 18.1261 (West 2017). The state statute
defines "strategic partner" as falling within the meaning of 22 U.S.C. §§ 8601 8606, which
encompasses a chapter of the U.S. Code entitled "United States-Israel Cooperation."
76. CAL. PUB. CONT. CODE § 2010 (West 2016). While the United States government
has often been relatively equivocal on the issue, it has been the status quo policy of the U.S.
government, dating back to at least 1978, that the West Bank and Gaza are not (yet) subject
to Israeli sovereignty under international law. However, there have been recent indications
d. Unique Featuresof State Laws
Some anti-BDS laws take measures to prevent constitutional

challenges. Two state statutes carve out activities
77
that are protected
7
under the First Amendment-one explicitly and one implicitly.
8
That is, the statutes do not apply to a particular activity if the activity
is protected under the First Amendment. 79 Two state statutes make
clear that they are not intended to be applied to U.S.-based compa-
nies,8o which is a way to prevent entities from demonstrating stand-
ing to sue. Several state statutes carve out activities that would fall
under the EAA or other federal anti-boycott laws, thereby bypassing
charges of conflict preemption.8 1
Unlike the EAA, the state anti-BDS laws are generally only
enforceable against business entities, such as corporations or partner-
ships. For example, Florida's contract-focused anti-BDS statute ap-
plies to any "company" that participates in a boycott of Israel, defin-
ing a company as including a list of business types, 82including a sole
proprietorship, but not an individual person per se. Many of the
laws, such
83
as Ohio's statute, require that the entity operates "to earn a
profit."
Several of the prohibitions on contracting are not absolute.
of a policy shift, even as the State Department denies such a shift. Loveday Morris, U.S.
Ambassador Breaks with State Dept. Policy: 'I Think the Settlements Are Part of Israel,'
CHI. TRIB. (Sept. 29, 2017), http://www.chicagotribune.com/news/nationworld/ct-us-
ambassador-israel-settlements-20170929-story.html [https://perma.cc/2UA5-LZDK].
77. Minnesota, MINN. STAT. § 3.226 (2017).
78. California's reference in its legislative findings to targeting boycotts conducted
"under the pretext of exercising First Amendment rights" (emphasis added) implies that the
company in question is not actually exercising First Amendment rights. 2016 Cal. Legis.
Serv. Ch. 581 (A.B. 2844) (West). Accordingly, California's anti-BDS statute could
reasonably be interpreted to implicitly exclude from its provisions boycott activities that are
actually protected by the First Amendment.
79. Accordingly, insofar as any of the core substance of the statutes would infringe on
protected First Amendment activities, the laws would effectively be a dead letter.
80. Colorado, COLO. REV. STAT. §§ 24-54.8-203 (2016); Illinois, 40 ILL. COMP. STAT.
5/1-110.16(k) (2016).
81. See, e.g., ARIZ. REV. STAT. ANN. §§ 35-393(1)(a) (2016) (applying to boycotts
"other than those boycotts to which 50 United States Code § 4607(c) applies"); Md. Exec.
Order No. 01.01.2017.25, (A)(1)(v) (Oct. 23, 2017) (excepting from the definition of
"Boycotts of Israel" those "that are forbidden by the United States pursuant to 50 U.S.C.
§ 4607"); OHIO REV. CODE ANN. § 9.76(A)(1)(a) (West 2016) (excepting from its definition
of "boycott" those "[b]oycotts to which 50 U.S.C. 4607(c) applies").
82. FLA. STAT. § 215.4725(1)(b) (2016).
83. OHIO REV. CODE ANN. § 9.76(a)(2) (West 2016).
Some states set monetary thresholds-for example, Alabama's stat-

ute does not apply to contracts worth less than $15,000.8 4 Addition-
ally, certain investment-focused statutes are not absolute-Texas's
investment-focused statute, for example, explicitly permits a cessa-
tion in divestment if clear and convincing evidence shows that the
entity has suffered or will suffer a loss in value of its assets as a result
of divestment
85
or if there would be a deviation from the portfolio's
benchmark.
II. THE FIRST AMENDMENT AND BDS
A. The FirstAmendment in General
The First Amendment stands as a safeguard against unwar-

ranted government regulation of speech, press, assembly, and peti-
tion.8 6 Twentieth-century Supreme Court jurisprudence has extended
these provisions to protect association and non-verbal actions that
convey a message 7-commonly referred to as "expressive con-
duct"-such as wearing a black armband to protest the Vietnam
War" 8 9 In general, the government
may notorregulate
burningconduct
an American
becauseflag.
of its expressive elements. 90 How-
84. ALA. CODE § 41-16-5(c)(2) (2016).

85. TEX. Gov'T CODE ANN. § 808.056(a) (West 2017).
86. The First Amendment provides, in relevant part, that "Congress shall make no
law ... abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances." U.S. CONST.
amend. I. While the amendment's language explicitly applies to acts of "Congress," a series
of Supreme Court cases incorporated the various elements of the First Amendment into the
Fourteenth Amendment's Due Process Clause, effectively applying them to the states
(freedom of speech: Gitlow v. New York, 268 U.S. 652, 666 (1925) (dicta); freedom of the
press: Near v. Minnesota, 283 U.S. 697, 707 (1931); freedom of assembly: De Jonge v.
Oregon, 299 U.S. 353, 364 (1937); right to petition for redress of grievances: Edwards v.
South Carolina, 372 U.S. 229, 235 (1963); freedom of expressive association: NAACP v.
Alabama, 357 U.S. 449, 460 (1958)).
87. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) ("The First Amendment
literally forbids the abridgment only of 'speech,' but we have long recognized that its
protection does not end at the spoken or written word .... [C]onduct may be 'sufficiently
imbued with elements of communication to fall within the scope of the First and Fourteenth
Amendments."').
88. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
89. Johnson, 491 U.S. 397.
90. Id. at 406 ("[The government] may not.., proscribe particular conduct because it
has expressive elements.") (emphasis in original); Ashcroft v. ACLU, 535 U.S. 564, 573
(2002) ("[T]he First Amendment [generally] means that government has no power to restrict
ever, it has more flexibility to regulate expressive conduct, such as

burning a draft card, than it has to regulate pure speech, such as ver-
bally denouncing the draft. 91
Federal courts have not yet issued a final decision on the First
Amendment implications of anti-BDS laws, but it is likely that they
will soon need to decide on the constitutional merits of challenges to
such laws. In 2017, the ACLU filed lawsuits in federal court chal-
lenging the contract-focused anti-BDS statutes of Kansas 92 and Ari-
zona, claiming several First Amendment violations.
In the first suit, Koontz v. Watson, a Kansas public school
employee brought a § 1983 lawsuit against the State of Kansas after
she was required to certify, pursuant to Kansas's anti-BDS law, that
she was not engaged in a boycott of Israel as a condition for entering
a contract with the state to become a trainer for a specialized educa-
tion program. 94 Specifically, Koontz alleged that the required certifi-
cation violated the First Amendment and the Equal Protection Clause
of the Fourteenth Amendment. 95 In January 2018, the U.S. District
Court of Kansas granted a preliminary injunction, with the judge
holding that Koontz was likely to succeed on the merits of her First
Amendment claim. 96 The district court later dismissed Koontz's
lawsuit in June 201897 after the Kansas state legislature amended the
law so that it only applies to businesses rather than individuals and
only to contracts worth at least $100,000.98 In other words, the con-
expression because of its message, its ideas, its subject matter, or its content," quoting Police
Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)); R.A.V. v. City of St. Paul, 505 U.S.
377, 391 (1992) (striking down a city ordinance that prohibited certain conduct in this
case, cross-burning with the intent to intimidate others on the basis of their race, gender, or
religion, because the statute impermissibly discriminated on the basis of viewpoint).
91. Johnson, 491 U.S. at 406 ("The government generally has a freer hand in
restricting expressive conduct than it has in restricting the written or spoken word.").
92. Complaint for Declaratory and Injunctive Relief, Koontz v. Watson, 283 F. Supp.
3d 1007 (D. Kan. 2018) (No. 17-cv-4099). See also Plaintiff's Motion for Preliminary
Injunction, Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan. 2018) (No. 17-cv-4099).
93. Complaint for Declaratory and Injunctive Relief, Jordahl v. Brnovich, No. 3:17-cv-
08263-DJH, 2018 WL 4732493 (D. Ariz. Dec. 6, 2017). See also Plaintiffs' Motion for
Preliminary Injunction with Accompanying Declaration and Memorandum of Law, Jordahl
v. Brnovich, No. CV-17-08263-PCT-BSB, 2018 WL 4732493 (D. Ariz. Sept. 27, 2018).
94. Koontz v. Watson, 283 F. Supp. 3d. 1007, 1013 14 (D. Kan. 2018).
95. Complaint for Declaratory and Injunctive Relief, Koontz v. Watson, 283 F. Supp.
3d 1007 (2018) (No. 17-cv-4099).
96. Koontz, 283 F. Supp. 3d. at 1024.
97. Agreed Order of Dismissal, Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan.
2018) (No. 17-cv-4099).
98. KAN. STA. ANN. §§ 75-3740e f(2018).
troversy became moot because the statute no longer applied to

Koontz, and the court found no opportunity to rule on the merits of
Koontz's constitutional
99 claim, though the judge ordered the state to
pay her legal fees.
In the second suit, Jordahl v. Brnovich, an Arizona attorney
whose firm provided legal services to incarcerated individuals sued
to enjoin a state statute under which he was required to certify that
his law firm would not "engage in a boycott of Israel" for the dura-
tion of its contract with a county prison. 10 Jordahl's claims were
substantially similar to those in Koontz, and the federal judge's deci-
sion was also substantially the same. 101 In September 2018, the U.S.
District Court for the District of Arizona issued a preliminary injunc-
tion, preventing application of Arizona's anti-BDS statute. That
ruling has been appealed to the Ninth Circuit. 103
In any case, the argument that anti-BDS statutes violate the°4
First Amendment is not "straightforward," as some have claimed'
and as the preliminary injunctions may seem to suggest. In the ab-
sence of existing precedent on anti-BDS statutes, judging whether
such laws run afoul of First Amendment protections will require
courts to work backwards through the complex First Amendment ju-
risprudence. To this end, a court must first determine whether BDS
boycotts are protected by the First Amendment and then, assuming
the activities are constitutionally protected, determine the extent of
the protection in order to weigh the sufficiency of the government's
interest compared to the right of BDS supporters to undertake boy-
cotts against Israel.
99. Sherman Smith, Judge Dismisses Lawsuit over Israel Boycott Ban, OrdersState of
Kansas to Pay Legal Fees, TOPEKA CAPITAL-JOURNAL (June 29, 2018), http://www.cjonline.
com/news/20180629/judge-dismisses-lawsuit-over-israel-boycott-ban-orders-state-of-
kansas-to-pay-legal-fees [https://perma.cc/C7MF-6HTA].
100. Order, Jordahl v. Brnovich, No. CV-17-08263-PCT-DJH, 2018 WL 4732493 (D.
Ariz. Sept. 27, 2018).
101. Id.
102. Id. While the reasoning in the Jordahl order was incisive, the remainder of this
Note focuses on the legal analysis contained in the Koontz injunction order rather than
Jordahl primarily because the Jordahl injunction was issued only a short time before
publication of the Note.
103. State's Notice of Preliminary Injunction Appeal, Jordahl v. Brnovich, No. CV-17-
08263-PCT-DJH, 2018 WL 4732493 (D. Ariz. Oct. 1, 2018).
104. Edelman, supra note 9.
B. PoliticalBoycotts and the FirstAmendment: Claiborne Hardware
Opponents of anti-BDS laws routinely invoke NAACP v.

Claiborne Hardware105 to establish the principle that political boy-
cotts, such as those undertaken by BDS activists, are constitutionally
protected.l16 Indeed, in Claiborne, the Supreme Court unanimous-
ly 10 7 held that political boycotts are a constitutionally protected form
of expressive conduct, reversing a judgment against the NAACP and
others for damages against local businesses and a permanent injunc-
tion arising from a boycott of white-owned businesses that had been
planned at a local NAACP meeting.1 0 8 The Court held that, even
though some of the boycotters engaged in violence, the nonviolent
elements of the boycott were protected by the First Amendment, be-
cause they "sought to bring about political, social, and economic
change," which is precisely the type of activity that the First
Amendment aims to protect. 109 The Court went on to declare that a
state's right to regulate economic activity, which in another context
could justify a prohibition against a local boycott, "could not justify a
complete110
prohibition against a nonviolent, politically motivated boy-
cott."
Claiborne, then, can properly be read to stand for a categori-
cal rule, though the scope of that rule is subject to much debate. A
common interpretation of the case is that political boycotts are on par
with the most protected expressive conduct, and this interpretation
has been reflected in subsequent case law. 11 Some commentators
105. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

106. See, e.g., PALESTINE LEGAL & CTR. FOR CONSTITUTIONAL RIGHTS, THE PALESTINE
EXCEPTION TO FREE SPEECH (2015), https://ccrjustice.org/sites/default/files/attach/2015/
09/Palestine%20Exception%20Report%2OFinal.pdf [https://perma.cc/NZP9-RJ6F]; Brian
Hauss, The First Amendment Protects the Right to Boycott Israel, AM. CIVIL LIBERTIES
UNION (July 20, 2017), https://www.aclu.org/blog/free-speech/first-amendment-protects-
right-boycott-israel [https://perma.cc/9CU3-PLTH].
107. The vote was 8-0, with Justice Marshall not participating in the proceedings.
108. The boycotters' demands included the following: desegregation of all public
schools and public facilities, hiring of black policemen, public improvements in black
residential areas, selection of blacks for jury duty, integration of bus stations, end to verbal
abuse by law enforcement officers, the use of respectful rather than demeaning terms used to
address blacks, and the employment of black cashiers and clerks at stores. Claiborne, 458
U.S. at 899 900.
109. Id. at911.
110. Id.at912 14.
111. See, e.g., McCalden v. California Library Ass'n, 955 F.2d 1214, 1229 (9th Cir.
1990) ("[Claiborne] held that a politically motivated boycott was protected by the First
Amendment.") (Kozinski, J., dissenting); Richmond, Fredericksburg & Potomac R.R. Co. v.
have instead interpreted Claiborne's holding to be much narrower,

limiting the protection of political boycotts to circumstances that
share the case's particular facts. For example, the fact that Claiborne
effectively involved a complete ban on a boycott (through the state
court's grant of a permanent injunction and imposition of civil liabil-
ity against the boycotters) may be interpreted to undermine the case's
applicability to mere regulations of boycotts that do not rise to the
level of total proscription. In addition, the boycott in Claiborne was
a direct attempt to vindicate constitutionally protected rights under
the Fourteenth Amendment, and the boycott involved elements of
physical association and local assembly, so the case could similarly
be interpreted to protect boycotts only to the extent that they share
these characteristics. At the extreme, one commentator even sug-
gested that Claiborne's statements about the First Amendment's pro-
tection for political boycotts were mere dicta. 113
As a preliminary matter, BDS boycotts clearly fall within the
broadest possible holding of Claiborne. BDS boycotts, like the
NAACP boycott, have the goal of bringing about political and social
change, which the ClaiborneCourt held to be sufficiently expressive.
Accordingly, some advocates and commentators have effectively ar-
gued that Claiborne stands for a categorical rule that protects politi-
114
cal boycott activities (like BDS) against government regulation.
Bhd. of Maint. of Way Emps, 795 F.2d 1161, 1163 (4th Cir. 1986) (citing Claiborne for the
principle that "[a]bsent clear congressional intent to the contrary, peaceful boycotts and
nonviolent picketing are a form of speech or conduct ordinarily entitled to protection under
the first and fourteenth amendments to the Constitution"); Mendelsohn v. Meese, 695 F.
Supp. 1474, 1481 n.7 (S.D.N.Y. 1988) (citing Claiborne for the principle that
"a political boycott is generally protected by the First Amendment"); Memorandum in
Support of Plaintiff's Motion for Preliminary Injunction at 2, Koontz v. Watson, 283 F.
Supp. 3d 1007 (D. Kan. 2018) (No. 17-cv-4099) (citing Claiborne as holding that "political
boycotts are fully protected by the First Amendment rights to free expression and free
association").
112. See, e.g., Marc A. Greendorfer, The Inapplicabilityof FirstAmendment Protections
to BDS Movement Boycotts, 2016 CARDOZO L. REV. DE NOVO 112, 116 (2016).
113. Gordon M. Orloff, The PoliticalBoycott: An Unprivileged Form of Expression,
1983 DuKE L.J. 1076, 1085.
114. See, e.g., Plaintiffs' Motion for Preliminary Injunction with Accompanying
Declaration and Memorandum of Law at 8, 12, Jordahl v. Brnovich, No. CV-17-08263-
PCT-BSB, 2018 WL 4732493 (D. Ariz. Sept. 27, 2018) (stating that "[s]ince [Claiborne] ...
it has been clear that the First Amendment protects the right to engage in politically
motivated boycotts" and that Claiborne prohibits "the suppression of political boycotts");
Recent Legislation, First Amendment-Political Boycotts-South Carolina Disqualifies
Companies Supporting BDS from Receiving State Contracts.-S.C. Code Ann. § 11-35-5300
(2015), 129 HARV. L. REV. 2029, 2031 n.17 (2016) [hereinafter Recent Legislation] ("The
holding of Claiborne Hardware categorically extends First Amendment protection to
The judge in Koontz, in discussing the merits of the pending case, in-
terpreted Claiborne for the principle, without qualification, that
"[t]he First Amendment protects the right to participate in a boy-
cott."115 Remarkably, the judge further expressed that "[i]n some re-
spects, the issue here is easier than the one in Claiborne," because
Claiborne involved certain "complicating facts" that are not present
in the Koontz case. 116 Specifically, the NAACP boycott involved il-
legal and violent conduct as a part of the broader boycott, while there
were no117such allegations regarding Koontz or her fellow BDS sup-
porters.
The Koontz court's conclusion is too hasty, however, owing
to Claiborne'sambiguities and the lack of federal case law interpret-
ing the limits of the case's holding. While a court should consult
Claiborne for determining the constitutionality of anti-BDS laws, as
the judge in Koontz did in enjoining the Kansas anti-BDS statute,
courts can and should analyze the issue independently of Claiborne.
In doing so, they can ensure consistency with the full scope of First
Amendment jurisprudence and establish a credible judgment that
could influence other courts and serve as a stable foundation for fu-
ture litigation and future lawmaking.
C. "Inherently Expressive ": Whether BDS Activities Should Receive

FirstAmendment Protection at All
The relevant inquiry for whether the First Amendment pro-

tects expressive conduct is whether the conduct is sufficiently ex-
pressive to gain First Amendment protection. 118 While the standard
lacks precise definition, the Supreme Court explained in Rumsfeld v.
Forum for Academic & InstitutionalRights, Inc. that the government
can regulate conduct under the First Amendment so long as the con-
duct is not "inherently expressive." 119 Conduct is inherently expres-
sive when an observer can understand that the conduct is expressing
political boycotts.").
115. Koontz v. Watson, 283 F. Supp. 3d 1007, 1021 (D. Kan. 2018).
116. Id. at 1022 n.8.
117. Id.
118. See, e.g., Spence v. Washington, 418 U.S. 405, 409 (1974) (describing that it is
necessary, when considering whether conduct qualifies for First Amendment protection, to
determine "whether [the plaintiff's] activity was sufficiently imbued with elements of
communication to fall within the scope of the First and Fourteenth Amendments").
119. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006).
an idea without any spoken or written explanation. 120

In the proceedings in Koontz, the State of Kansas cited
Rumsfeld to support its position that the regulated BDS activities
were not sufficiently expressive to warrant First Amendment protec-
tion. 121 In Rumsfeld, a federal statute 122 required each institution of
higher education, in order to be eligible for certain federal funding, to
offer military recruiters the same access to the school's campus and
students that it provided to nonmilitary recruiters. 123 Law schools
challenged the statute on the grounds that it compelled them to
choose between expressing a particular message-that the schools
support the military-and losing federal funding. 124 The Supreme
Court held that any compelled speech 125 was incidental to the law's
regulation of non-expressive conduct. It concluded that refusal to
allow military recruiters on campus is not inherently expressive, be-
cause people could understand that the schools were expressing an
idea only if the schools explicitly explained why the military recruit-
ers were off-campus-their absence at recruiting events could be rea-
sonably attributed to a variety of factors that have nothing to do with
disapproval of military recruitment. 126 In contrast, the Court held in
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Bos-
ton that requiring parade organizers to include a certain group in the
parade would alter the organizers' speech.lZ7 The expressive content
of the parade itself was dependent on the identities of the marching
individuals. 12 The relevant question for BDS activities, then, is
whether political boycotts are more similar to the recruiting events in
Rumsfeld or to the parade in Hurley.
In Koontz, the judge effectively distinguished between
Rumsfeld, on the one hand, and cases like Hurley and Koontz on the
other. In contrast to a private parade whose very purpose was to ex-
120. Id.
121. Koontz, 283 F. Supp. 3d at 1023 (noting citation by defense counsel during oral
argument).
122. 10 U.S.C. § 983(b) (2002).
123. Rumsfeld, 547 U.S. at 51.
124. See id. at 52.
125. Id. at 62.
126. Id. at 66.
127. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 572 73
(1995).
128. Id. at 568. The purpose of the parade itself was to celebrate its members' identity,
to show that there are gay, lesbian, and bisexual descendants of Irish immigrants, and to
support similar individuals who were going to march in New York. Id. at 570.
press particular ideas, holding employment interviews and recruiting

receptions lacks an expressive quality, 129 because the law schools
were effectively providing a service for students where the speech
was pragmatic rather than expressive. Like the parade in Hurley, in
which a spectator could understand the expression of the marchers,
even without a clear explanation of their motives, "[i]t is easy enough
to associate [Koontz's] conduct with the message that the boycotters
believe Israel should improve its treatment of Palestinians. While
an observer could mistake the actions of a BDS boycotter as motivat-
ed by something other than specific beliefs about Israel's treatment of
Palestinians-for example, anti-semitism-the expressive quality of
BDS boycotts is more palpable than the pragmatic recruitment events
in Rumsfeld. Particularly as boycotts of Israel have become more
widespread and publicized, it is increasingly reasonable to infer a
boycotter's political motivations from merely observing their con-
duct.
This conclusion is supported by dicta in FTC v. Superior
Court Trial Lawyers Association,13 1 which is, next to Claiborne, the
Supreme Court's clearest statement about First Amendment protec-
tion for political boycotts. In Superior Court Trial Lawyers, the
Court held that a boycott was not immunized from an antitrust action,
because it had economic (rather than primarily political) motivations,
but stated the following: "Any restrictions on [politically motivated]
boycotts must be scrutinized with special
,,132 care in light of their historic
importance as a mode of expression. Taken at face value, this
seems to support the conclusion, albeit in dicta, that political boycotts
are expressive in nature, and restrictions on such boycotts warrant
scrutiny under the First Amendment.
Even assuming that, under Claiborne or the supplemental
First Amendment case law described above, political boycotts are
protected by the First Amendment, constitutional protection is not by
itself sufficient to support the conclusion that the government cannot
thereby regulate the conduct. As the Claiborne Court itself ex-
plained, "[t]he presence of protected activity ... does not end the rel-
evant constitutional inquiry. Governmental regulation that has an in-
cidental effect on First Amendment freedoms may be justified in
certain narrowly defined instances."' 133 Indeed, the Court expressly
129. Koontz v.Watson, 283 F. Supp. 3d 1007, 1024 (D.Kan. 2018).

130. Id.
131. FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990).
132. Id. at 448.
133. NAACP v. Claiborne Hardware, 458 U.S. 886, 912 (1982).
narrowed its holding in Claiborne, recognizing that the right to boy-

cott-even to boycott for political reasons-is not absolute. 134 That
is, an activity can be protected by the First Amendment but be sub-
ject to narrowly tailored restrictions, without constitutional violation,
similar to the way in which cursing is protected by the First Amend-
ment but is135still subject to a variety of "time, place, and manner" re-
strictions.
The basic conclusion here is that, even though at least some
BDS activities appear to be protected by the First Amendment under
a straightforward interpretation of Claiborne, and probably protected
under an examination of the case law independent of Claiborne, a
state government could still regulate the activities under certain con-
ditions. The mere fact that the Constitution protects a particular ac-
tivity does not necessarily mean that the protection is sufficiently
strong to defeat a narrowly tailored government regulation. Rather, a
thorough inquiry into the constitutionality of regulations on BDS ac-
tivities necessarily involves consideration of all of the circumstances
that could limit the activity's constitutional protection or otherwise
justify governmental infringement on the right to participate in that
type of political boycott.
D. "IncidentalEffects": PossibleLimitations to the Claiborne
Holding
1. U.S. v. O'Brien and the Doctrine of "Incidental Infringement"
Proponents of anti-BDS laws could argue that, even if BDS

activities are protected by the First Amendment, the laws do not ul-
timately run afoul of the First Amendment, because they are a mere
"incidental infringement" on constitutional rights. The concept of
"incidental infringement" is rooted in United States v. O'Brien,
where the Supreme Court held that the significant government inter-
est in prohibiting the burning of draft cards outweighed the expres-
sive interest of protesters. The O'Brien doctrine applies when
134. Id.
135. See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978) (holding that the FCC's
censure of a radio station for its daytime broadcast of George Carlin's "Filthy Words"
routine did not violate the First Amendment); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.
675 (1986) (holding that a public school's discipline of a student for using offensive
language during a speech did not violate the First Amendment). Cf Cohen v. California,
403 U.S. 15 (1971) (reversing a disturbing the peace conviction in favor of a defendant who
had walked through a courthouse wearing a jacket bearing the words "fuck the draft").
136. United States v. O'Brien, 391 U.S. 367 (1968).
"'speech' and 'nonspeech' elements are combined in the same course

of conduct" and there is a "sufficiently important governmental inter-
est in regulating the nonspeech element."' 137 Accordingly, the doc-
trine is rooted in a balancing of interests-quite simply, if the
strength of the government's interest outweighs the strength of the
right, then the government is justified in regulating the activity to the
extent necessary to achieve its interest. 138
Claiborneitself explicitly cited O'Brien in acknowledging the
fact that otherwise-political boycotts could be subject to permissible
incidental infringement under certain circumstances. 139 In Claiborne,
the Court explicitly refused to decide whether and to what extent a
narrowly tailored statute aimed at prohibiting anticompetitive con-
duct or forms of secondary pressure (or some other legitimate gov-
ernment purpose) could permissibly restrict protected First Amend-
ment activity. 140 However, it gestured at certain types of regulations
that could justify governmental restriction. For example, the Court
listed boycotts that have a "disruptive effect on local economic con-
ditions," those that "suppress competition," and those involving "un-
fair trade practices" as types of boycotts that could be curtailed or
prohibited, consistent with the Constitution.1 4 1 Indeed, the Supreme
Court has generally upheld local and state regulations of refusals to
conduct business, including boycotts that are conducted to gain an
economic advantage, 142 which are generally considered to be within
the government's power143to regulate and even to prohibit under, for
example, antitrust laws.
Lastly, the Court mentioned that Congress could prohibit
"[s]econdary boycotts and picketing by labor unions" in order to
strike the "delicate balance" between freedom of expression and
keeping neutral parties free from "coerced participation in industrial
137. Id. at 376.

138. Id.
140. Id. at 915 n.49 ("We need not decide in this case the extent to which a narrowly
tailored statute designed to prohibit certain forms of anticompetitive conduct or certain types
of secondary pressure may restrict protected First Amendment activity.").
141. Id. at 912.
142. See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426 (1990).
143. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 (1988)
(upholding an antitrust action by stating that the holding of Claiborne is not applicable to
a boycott conducted by business competitors who "stand to profit financially from a
lessening of competition in the boycotted market"); Superior Court Trial Lawyers, 493 U.S.
at 426-28 (holding that a boycott involving attorneys that refused to accept cases unless the
fees they were paid were raised was a violation of the antitrust laws).
strife," apparently referring to conflicts between labor unions and

employers. 14 4 Besides O'Brien, the three primary cases cited in
Claibornefor the principle that First Amendment rights could lawful-
ly be subject to incidental infringement are all rooted in labor con-
texts in which commercial interests rather than political interests
were paramount. Specifically, in all three cases, the boycott or pro-
test activities involved self-interested workers or unions attempting to
secure an economic advantage. Giboney v. Empire Storage and Ice
145
affirmed an injunction against workers picketing an ice plant.
NLRB v. Retail Store Employees upheld an injunction against a union
for conducting a secondary boycott in violation of federal labor
law.146 National Society of Professional Engineers v. United States
upheld a Sherman antitrust action against a professional association
for prohibiting competitive bidding. In all three cases, the boycott-
ing parties were advancing distinct economic interests.
While the Court's reasoning is a bit muddled, Claiborne dis-
tinguished these economically motivated boycotts from politically
motivated boycotts, such as the NAACP's protests. States have
"broad power" to regulate the former, but there is no comparable
power to prohibit "peaceful political activity," such as the boycotts in
question. 4 8 To this effect, the Court quoted the lower court's posi-
tion positively: "There is no suggestion that the NAACP, MAP or
the individual defendants were in competition with the white busi-
nesses or that the boycott arose from parochial economic inter-
ests. ' 149 Instead, the boycott arose from political efforts-in this
case, to end racial discrimination in the town, which "differentiates
this case from a boycott organized for economic ends," because pro-
testing racial discrimination is "essential political speech" lying at the
core of the First Amendment. 150
Because of the facially political character of BDS activities,
similar to the NAACP boycott, Claiborne itself does not, without fur-
144. Superior Court Trial Lawyers, 493 U.S. at 428 n.12 (citing NLRB v. Retail Store
Emps., 447 U.S. 607, 617 18 (1980)).
145. Giboney v. Empire Storage and Ice, 336 U.S. 490 (1949).
146. Retail Store Emps., 447 U.S. 607.
147. Nat'l Soc'y of Prof. Engineers v. United States, 447 U.S. 607 (1980). Importantly,
the court cited a fourth case, Int'l Longshoremen's Ass'n AFL-CIO v. Allied Int'l, 456 U.S.
212 (1982). Int'l Longshoremen does not fit the mold of the other cases and will be
discussed infra II.D.3.b, regarding the notion of coercive expression.
148. NAACP v. Claiborne Hardware, 458 U.S. 886, 912 14 (1982).
149. Id. at 915 (quoting Henry v. First Nat'l Bank of Clarksdale, 595 F.2d 291, 303 (5th
Cir. 1979)).
150. Id.
ther analysis, provide an adequate sense of whether a state would be

justified in regulating BDS activities. Accordingly, a court would
need to interrogate the specific governmental interests at stake in
regulating BDS and the strength of the individual right to participate
in BDS, accounting for potential limitations to the right to participate
in BDS boycotts.
2. The State Interest in Regulating BDS Activities
a. Anti-BDS Statutes as Anti-DiscriminationLaws
The government interest most often cited as a justification for

anti-BDS laws is anti-discrimination. Indeed, most states explicitly
couch their anti-BDS laws in terms of anti-discrimination regulation.
For example, the Florida statute reads, in relevant part, "'Boycott Is-
rael' . . . means refusing to deal ...with Israel ...in a discriminatory
manner." 151 Many of the statutes further stipulate that in order to fall
within the statutory definition of "boycott," the activity must discrim-
inate on the basis of some protected characteristic. Arizona's statute,
for example, reads as follows: "'Boycott' means engaging in a re-
fusal to deal ... with Israel ... if those actions are taken ... in a
manner that discriminates on the basis of nationality, national origin
or religion." 152 For his part, Governor Cuomo of New York justified
his anti-BDS executive order based on the "clear, well-established
legal distinction between political speech
,,153 ... and blatant discrimina-
tory conduct such as BDS activities. According to Cuomo's law-
yer, BDS violates pre-existing New York state law by amounting to
discrimination "based on nothing more than a person's national
origin15or 1 54 This sentiment is echoed by other critics of
5 ethnicity."
BDS.
On the surface, there appears to be a difference between BDS
supporters refusing to purchase goods that have an origin in a par-
ticular country and white-owned businesses refusing to serve indi-
151. FLA. STAT. § 215.4725(l)(a) (2016).

152. ARIZ. REV. STAT. ANN. §§ 35-393(1) (2016).
153. Cuomo, supra note 4 ("If a business owner refuses to serve or hire someone based
on race, religion or ethnicity, it is illegal and sanctionable. If that same person attends a
political rally decrying one group of people African Americans, Jews, the LGBT
community it is constitutionally protected speech.").
155. Greendorfer, supra note 112, at 124 ("There should be no question that anti-Israel
boycotts are borne of discriminatory intent.").
vidual black patrons, for example. However, legal scholar Eugene

Kontorovich, who helped write anti-BDS statutes for several
states,' 56 argued that Israel is "certainly a proxy for Jewishness" and
that acting on the basis of such proxies runs afoul of anti-
discrimination laws, similar to the impermissibility of using proxies
like "neighborhood" for racially biased policing. 157 Effectively, the
argument is that BDS boycotts of Israel violate state and federal anti-
discrimination laws that are clearly constitutional.
As a general matter, according to Kontorovich, "not doing
business with people is not in itself protected speech," or else there
would be a "big problem with all kinds of antidiscrimination
measures," 158 including President Obama's 2014 executive order for-
bidding federal contractors from discriminating based on sexual ori-
entation and gender identity. 159 In this respect, Kontorovich empha-
sized that the First Amendment does not make distinctions between
"good" and "bad" forms of discrimination (say, discrimination
against Israel and against LGBTQ persons, respectively). 160 If feder-
al contractors can be compelled not to discriminate on the basis of
sexual orientation-so the argument goes-they can be compelled
not to discriminate against Israel in their business dealings. In re-
sponse to such an argument, the judge in Koontz concisely explained
that "[a] desire to prevent discrimination against Israeli businesses is
an insufficient public interest to overcome the public's interest in
protecting a constitutional right."' 16 1 This explanation indicates a
plausible distinction between Obama's executive order, which does
not on its face implicate a constitutional right, and anti-BDS laws,
which implicate the right to engage in political boycotts.
Furthermore, Kontorovich's argument appears to conflict
with the basic factual circumstances of Claiborne, in which the
NAACP and other groups specifically and deliberately targeted
white-owned businesses. That is, the boycotters discriminated on the
basis of race, which, according to the argument of Cuomo, Konto-
rovich, and others, would justify the government banning the boycott
altogether. Accordingly, any justification of anti-BDS laws on anti-
discrimination grounds must come to terms with the fact that the
ClaiborneCourt seems to have been wholly unconcerned with the ra-

157. Kontorovich, supra note 9.
158. Edelman, supra note 9 (quoting Kontorovich).
159. Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 21, 2014).
160. Id.
161. Koontz v. Watson, 283 F. Supp. 3d 1007, 1027 (D. Kan. 2018).
cially discriminatory character of the boycott.

Perhaps in trying to achieve this reconciliation, Greendorfer
cites two recent state cases as standing for the principle that anti-
discrimination laws can trump First Amendment interests when ap-
plied to refusals to conduct business.162 Greendorfer's general prin-
ciple is surely correct-under certain conditions, strong state anti-
discrimination interests would outweigh relatively weak First
Amendment interests-but he misinterprets the two cases at issue
and misapplies the principle to the BDS context. The first case, Mas-
terpiece Cakeshop, decided by the Colorado Appellate Court and
then-pending before the U.S. Supreme Court, 163 did not hold that
state anti-discrimination laws outweigh a baker's expressive interests
in baking cakes-instead, it held that decorating cakes, at least on the
facts of this case, is not sufficiently expressive to raise First Amend-
ment protection at all. 164 This is in sharp contrast to politically moti-
vated boycotts, which Claiborne held to be sufficiently expressive,
even if regulable by narrowly tailored statutes.
Distinguishing between the circumstances underlying a case
like Masterpiece Cakeshop and cases arising from BDS activities
demonstrates why justifying First Amendment infringement on the
basis of anti-discrimination is misapplied to the BDS context. To this
effect, legal scholar Michael Harper argued that the First Amendment
right to boycott should encompass only boycotts aimed at affecting
the decision-making of targeted entities, not those directed at the
"status" of targets, such as the identities of the owners or managers of
a business. 165 This appears to be consistent with anti-discrimination
law, and in light of the fact that the boycott at issue in Claiborne was
directed at white-owned businesses, Harper's argument still seems to
contradict Claiborne's holding. However, Harper clarified that his
vision of the right to boycott-as prohibiting boycotts initiated based
162. Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), rev'd 138
S.Ct. 1719 (2018) (finding that state anti-discrimination law compelling a bakery to provide
cakes for same-sex weddings was not a violation of the bakery owner's First Amendment
rights); Elane Photography, LLC v. Willock, 309 P.3d 53, 61 (N.M. 2013) (finding a state
anti-discrimination law compelling a photographer to provide services to a same sex couple
was not a violation of the photographer's First Amendment rights).
163. The Supreme Court granted certiorari in 2017 and ultimately held for the petitioner
baker on narrow grounds, related to the state commission's demonstrated bias against
religion. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S.Ct. 1719
(2018).
164. Craig, 370 P.3d at 288.
165. Michael C. Harper, The Consumer's Emerging Right to Boycott: NAACP v.
Claiborne Hardware and Its Implicationsfor American Labor Law, 93 YALE L.J. 409, 429
(1984).
on the identity of targets-is consistent with Claiborne, insofar as the

NAACP's boycott was ultimately aimed at influencing social deci-
sions rather than inflicting harm (economic or otherwise) on the tar-
gets. 166 The determining factor for Harper was not whether there is
discrimination per se, but rather whether the discrimination furthers
some invidious motive or, on the other hand, is aimed at the First
Amendment values of political expression, participation, petition, and
social influence. 167
Accordingly, under Harper's reasoning, certain forms of dis-
criminatory boycotts (in the descriptive, not legal, sense) may be
permissible, as long as the discrimination is aimed at influencing so-
cial decisions rather than inflicting harm. This is a clear way to dis-
tinguish, on the one hand, between U.S. businesses organizing boy-
cotts of competitor Israeli businesses in order to suppress competition
or a cakemaker's refusal to bake a cake for a same-sex couple and, on
the other hand, an American business refusing to buy parts from an
Israeli manufacturer in order to protest the Israeli political regime.
While the cakemaker may not personally hold any animus toward a
particular same-sex couple, the cakemaker's actions are not aimed at
influencing the couple's or the government's decisions. In the BDS
context, in contrast, the ultimate goal of boycotting a company like
SodaStream is not to put SodaStream out of business-it is to affect
Israeli foreign and domestic policy. And insofar as a specific BDS
initiative has such aims, it would generally be beyond anti-
discrimination regulation, consistent with the spirit of the First
Amendment and Claiborne.
b. Other Possible Justificationsfor Anti-BDS Statutes
The judge in Koontz referenced several other rationales for

Kansas's anti-BDS law, including some proffered by the state itself,
which the judge classified according to whether they were permissi-
ble or impermissible under the First Amendment. On the impermis-
sible front, the judge found that the legislative history of the statute
reveals that the statute's goal was to "undermine the message of
those participating in a boycott of Israel."' 16 8 The judge explained
that such a law constitutes either "viewpoint discrimination against
the opinion that Israel mistreats Palestinians or subject matter dis-
crimination on the topic of Israel," neither of which are permissible
166. Id.
167. Id.
168. Koontz v. Watson, 283 F. Supp. 3d 1007, 1022 (2018).
goals under the First Amendment. 169 The judge also addressed,
without explanation, the goal of minimizing any discomfort that Is-
raeli businesses may feel from BDS boycotts, which the judge also
found to be an impermissible goal. 170
Even if Kansas had a permissible goal, the judge still would
have granted the preliminary injunction because the statute is not
"narrowly tailored" to achieve its permissible ends. If the law is
aimed at regulating boycotts intended to suppress Israeli economic
competition, the statute is over-inclusive, because it also bans politi-
cal boycotts. If the goal is to promote trade relations with Israel, the
law is under-inclusive because it only regulates boycotts rather than
other conduct that significantly affects trade.iV1 Lastly, while avoid-
ing harm to the Kansas economy is a permissible goal, Kansas pre-
sented no evidence to demonstrate that Israeli companies would re-
strict their business dealings in or with the state without the anti-BDS
statute.lV2 Neither did the state present any evidence that commerce
with Israel increased as a result of, or in anticipation of, the statute. 173
A key point to take away from the preliminary injunction de-
cision in Koontz is that there are permissible government interests for
anti-BDS regulation, as Claiborne had recognized with regard to an-
ti-boycott regulations. Furthermore, it leaves open the possibility
that a particular state statute could be narrowly tailored to fulfill the
government's interest, even though the judge found the Kansas stat-
ute not to be narrowly tailored.
3. Possible Limitations to the Right to Participate in BDS
There are at least five distinct arguments that the right to par-
ticipate in a politically motivated boycott of Israel is relatively lim-
ited, such that state governments have greater flexibility to regulate
BDS to advance a legitimate government purpose. At least two of
these arguments can be readily addressed by Claiborne itself or by
other lines of case law, while three of the arguments are relatively
more challenging and could potentially pose problems for challengers
of anti-BDS statutes in court. These arguments are ordered from
least to most difficult, with "difficulty" being as much a function of
lack of doctrinal clarity as it is a function of unfavorable precedent.
169. Id.
170. Id.
171. Id. at 1023.
172. Id. at 1026.
173. Id.
a. Commercial v. PoliticalBoycotts
Kontorovich has argued that the state anti-BDS laws fall out-
side the scope of Claiborne because they have nothing to do with
consumer boycotts; instead, they relate strictly to boycotts by busi-
nesses, "which are far more conduct than expression."' 174 One dis-
tinction inherent in this analysis is between expressive boycotts con-
ducted by consumers and commercial boycotts conducted by
businesses. Kontorovich' s argument rests on the Commercial Speech
Doctrine, which entails that commercial speech-for example, adver-
tising or other expression aimed strictly at increasing profit isen-
--
titled to First Amendment protection, but it is entitled to177a lesser
degree of constitutional protection than "traditional speech."
This critique is ultimately misapplied to BDS, at least in gen-
eral, even if the Commercial Speech Doctrine persists after Citizens
United.17 In order to reach this conclusion, though, courts would
need to distinguish two influential cases that upheld the EAA-the
federal statute prohibiting certain boycotts against Israel-against
First Amendment challenges brought by corporations charged with
supporting boycotts of Israeli goods by answering Arab League ques-
tionnaires regarding their business relationships with Israel.17 9 The
Seventh Circuit, in a decision called Briggs & Stratton Corp. v.
Baldrige18 (consolidating the appeals of Briggs 18 and Trane v.
174. Eugene Kontorovich, Can States Fund BDS?, TABLET (July 13, 2015), http://www.
tabletmag.com/jewish-news-and-politics/1921 10/can-states-fund-bds [https://perma.cc/
B5FP-67NH].
175. The Supreme Court has variously defined "commercial speech" as expression that
does "no more than propose a commercial transaction," Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976), and "expression related
solely to the economic interests of the speaker and its audience," Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980).
176. Virginia Bd. of Pharmacy, 425 U.S. 748; Cent. Hudson, 447 U.S. at 557.
177. Cent. Hudson, 447 U.S. at 557 ("[T]he Constitution accords a lesser protection to
commercial speech than to other constitutionally guaranteed expression, nevertheless the
First Amendment protects commercial speech from unwarranted governmental regulation.").
178. It has been suggested that Citizens United v. Fed. Election Comm'n, 558 U.S. 310
(2010), could be used as a tool to challenge anti-BDS laws by dissolving the commercial
speech doctrine. See, e.g., Tamara R. Piety, Citizens United and the Threat to the
Regulatory State, 109 MICH. L. REv. 16 (2010).
179. Following an amendment to the EAA in 1979, answering an Arab League boycott
questionnaire at all even to affirm business dealings with Israel, which would lead to being
blacklisted by the Arab League violated federal law.
180. Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984) [hereinafter
Briggs].
Baldrige12), determined that the EAA's statutory prohibition passed

constitutional muster, because answering boycott questionnaires, mo-
tivated by an interest (though not necessarily a sole interest) in main-
taining commercial relationships, is commercial speech and is thus
not accorded full First-Amendment protection.18 3 This is the case
even though answering the questionnaires constituted "pure speech"
rather than the less-protected expressive conduct.
While Greendorfer has cited Briggs to stand for the principle 1 4
that boycotts of Israel are not protected by the First Amendment, 1
the case is readily distinguishable from a typical BDS boycott, even
setting aside the fact that the Foreign Affairs and Commerce Powers
(on which the government's power in Briggs rested) are unavailable
to states. In contrast to the corporations in Briggs, and in contrast to
the context of the Arab League Boycott in general, BDS-involved
companies generally do not gain a direct commercial advantage by
refusing to purchase goods or services from Israeli-based companies,
in part because there are no continued commercial relationships with
certain foreign countries at stake. Furthermore, BDS boycotts do not
make use of questionnaires, which further distinguishes the move-
ment from the Arab League Boycott. 185
It is conceivable that a company would take up a boycott of
an Israeli competitor in order to gain a commercial advantage, just as
it was conceivable (though contrary to decided fact) that some boy-
cotters in Claiborne were boycotting white-owned businesses to gain
market share or some other commercial advantage. However, in the
typical case, including Koontz and Jordahl,BDS boycotters attempt
to influence Israeli social policy, 186 just as the typical Claiborneboy-
cotter aimed to vindicate Fourteenth Amendment rights, rendering it
political expression, not commercial speech. Whether a particular
boycott action is political or commercial, though, is a determination
that must be made on a case-by-case basis, based on the subjective
motivations of the boycotters. This specificity renders anti-BDS
181. Briggs & Stratton Corp. v. Baldrige, 539 F.Supp. 1307 (E.D. Wisc. 1982).
182. Trane v. Baldrige, 728 F.2d 915 (W.D. Wisc. 1983).
183. Briggs, 728 F.2d at 917 18.
184. Greendorfer, supra note 112, at 121.
185. The coercive character of the questionnaires conflicts with the voluntary spirit of
BDS. Additionally, BDS boycotts are not centrally managed, and secondary boycotts are
not a primary method of boycott for BDS supporters.
186. See Edelman, supra note 9 (quoting several legal scholars as concluding that BDS
protests are political, not commercial, expression).
187. See FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426 27 (1990).
statutes as overbroad by encompassing politically motivated boycotts

in addition to commercial boycotts, regardless of the boycotters' sub-
jective intentions.
b. Coercive v. Communicative Expression
Another argument advanced by Governor Cuomo's counsel in

favor of New York's anti-BDS law is that BDS activities are not pro-
tected 1speech because BDS is "advanced to inflict economic
harm." 8 Besides conflicting with the express aims of the BDS
Movement, as described in Part I, this argument appears to conflict
with Claiborne, in which the Court explicitly held that "speech does
not lose protected character simply because it may embarrass others
or coerce them into action. ' 1s9 Indeed, the immediate goal of inflict-
ing economic harm is present in any boycott, including the NAACP
boycott, because it is the economic harm that makes the boycott ef-
fective-and it cannot be the case that no boycotts are constitutional-
ly protected. However, Cuomo's argument regarding economic harm
does resonate with a loose end of the Claiborne opinion. As the
Court described the circumstances under which a state may regulate
boycott activities, in addition to O'Brien and the three cases of per-
missible economic regulation of labor protests described above, the
Court cited a fourth case that is more difficult to square with
Claiborne's express holding: International Longshoremen's Asso-
ciation v. Allied International.
In International Longshoremen, 190 an American importer of
Russian wood products sued a labor union, members of which were
employed to unload the importer's ships but refused to do so. The
longshoremen were following the union's orders not to handle cargo
arriving from or destined for the Soviet Union, in protest of the 1979
Soviet invasion of Afghanistan. The importer's lawsuit alleged that
the boycott was an illegal secondary boycott under the National La-
bor Relations Act, because Russia, not the importer, was the primary
target of the protest. The Supreme Court agreed,191 holding that
when a purely secondary boycott reasonably can be expected to

190. Int'l Longshoremen's Ass'n AFL-CIO v. Allied Int'l, 456 U.S. 212 (1982).
191. The District Court had dismissed the complaint, holding that the boycott was a
purely political, primary boycott of Russian goods and thus not within the scope of the
NLRA; the Appellate Court reversed the dismissal, and the Supreme Court affirmed the
reversal, effectively reinstating the claim under the NLRA. Id. at 217 18.
threaten neutral parties (in this case, the importer of Russian wood
products) with ruin or substantial loss, the pressure on those parties
must be viewed as at least one of the objects of the boycott. The
NLRA's prohibition on secondary boycotts in the labor context was
designed to protect neutral third parties from such losses, and that
statutory purpose is within the legitimate scope of congressional au-
thority. The Court held that it was not a defense that the case did not
involve a labor dispute with a primary employer, as most previous
cases had, but rather a political dispute with a foreign nation.
The Court highlighted the fact that the conduct was designed
"not to communicate but to coerce," and such conduct merits "less
consideration [than secondary boycotts per se] under the First
Amendment." 1 3 This observation is left unexplained, except in one
footnote, citing the general principle of incidental infringement from
O'Brien and Justice Stevens's concurring opinion from NLRB v. Re-
tail Store Employees, in which Stevens distinguished between view-
points that call for only "an automatic response to a signal" and
viewpoints that call for a "reasoned response to an idea," the former
of which can be permissibly regulated by the government. 194 By it-
self, then, InternationalLongshoremen seems to stand for the princi-
ple that even a politically motivated boycott can be regulated without
impermissibly infringing on First Amendment rights when the boy-
cott aims at causing harm to neutral third parties (such as companies
affiliated with a foreign country) and the boycott is primarily coer-
cive in character. In light of the parallels between the facts of Inter-
national Longshoremen and BDS activities, this principle could be
extended to permit anti-BDS laws.
However, the apparent per se distinction between fully pro-
tected communicational conduct and not-fully-protected coercive
conduct seems to break down in Claiborne, decided just ten-and-a-
half weeks after InternationalLongshoremen. In Claiborne,as stated
above, the Court explicitly held that "speech does not lose protected
192. Id. at 224. The Court held that the labor laws reflect a careful balancing of
interests. 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. Also
relevant is the fact that the NLRA contains no exception for politically motivated secondary
boycotts, nor must it in order to sidestep the constraints of the First Amendment. The Court
analogized its own precedents that consistently rejected that secondary picketing by labor
unions is protected activity under the First Amendment. Id. at 225 27.
193. Id. at 226.
194. NLRB v. Retail Store Emps., 447 U.S. 607, 619 (1980) ("The statutory ban in this
case affects only that aspect of the union's efforts to communicate its views that calls for an
automatic response to a signal, rather than a reasoned response to an idea.") (Stevens, J.,
concurring).
character simply because it may embarrass others or coerce them into

action." 195 Rather than reversing the principle expressed by Interna-
tional Longshoremen just a few months after it was decided,
Claiborne actually rearticulates a long-standing Supreme Court prec-
edent. In addressing the violent and particularly coercive elements 196 of
the NAACP's boycott, Claiborne cited Chauffeurs v. Newell,
which reversed a Kansas Supreme Court grant of a permanent injunc-
tion against a labor union for their boycott and picketing of a dairy
business. The state court in that case had held that picketing and
boycotting loses legal protection when it takes on a coercive charac-
ter. 197 We can reasonably infer that the Court reversed based on the
substance of the state court's holding regarding coercive picketing
and boycotting, though the Court's opinion was per curiam and of-
fered no written opinion other than a citation to a single page in
Thornhill v. Alabama (which was also referenced directly in
Claiborne), a case in which the Supreme Court reversed a conviction
for loitering and picketing in spite of the protest's relatively coercive
nature. 19 By citing these cases, even without significant exposition,
the Court appears to cast doubt on the expansive interpretation of In-
ternationalLongshoremen's reasoning.
Indeed, Claiborne appears to cabin InternationalLongshore-
men in an even more direct manner. Immediately after recognizing
the broad power of states to regulate commercially motivated boy-
cotts, and just prior to distinguishing between commercial and politi-
cal boycott activities, the Court quoted Retail Store Employees for
the principle that "[s]econdary boycotts and picketing by labor un-
ions may be prohibited" in order for Congress to strike a balance be-
tween a union's freedom of expression and the ability of neutral par-
ties to "remain free from coerced participation in industrial
strife." 199 The citation to Retail Store Employees was immediately
followed by a directive to "see Longshoremen v. Allied Internation-

196. Chauffeurs, Teamsters & Helpers Local Union v. Newell, 356 U.S. 341 (1958).
197. Newell v. Chauffeurs, Teamsters & Helpers Local Union, 181 Kan. 898, 913
(1957), rev'd 356 U.S. 341 (1958) ("Though the original picketing may have been peaceful
and for the lawful purpose of putting pressure on the employer by communicating the
grievance of the employees to the public, where these purposes were intermixed with acts of
coercion which were unlawful, the picketing in its entirety became tainted with the unlawful
purpose.").
198. Thornhill v. Alabama, 310 U.S. 88, 98 (1940).
199. Claiborne, 458 U.S. at 912 (quoting NLRB v. Retail Store Emps., 447 U.S. 607,
617 18 (1980)) (emphasis added).
al.' ' 20 0 Here, the Court implicitly clarifies the clunky holding of In-
ternationalLongshoremen, cabining it to specifically relate to "co-
erced participation in industrial strife," rooted in union and labor re-
lations rather than coercion per se. 201
The principle that arises from InternationalLongshoremen, as
interpreted by Claiborne,is that labor relations are simply treated in a
different manner than other contexts for First Amendment purposes,
probably because of the inherent economic interests at stake. Anoth-
er way to interpret the case, to the same effect, is that labor relations
are treated the same way as they are in other contexts, but that labor
contexts typically present a situation that is ripe for permissible gov-
ernment regulation. Regardless, unless it can be shown that BDS
boycotts coerce participation in industrial strife, citations to Interna-
tional Longshoremen to establish the principle that that BDS activi-
ties are not protected on the grounds that they are coercive or aimed
at economic harm are inapposite.
c. Consumer v. ProducerBoycotts
Inherent in Kontorovich's argument that state anti-BDS laws

fall outside the scope of Claiborne because they relate to business
boycotts rather than consumer boycotts 2 0 2 is the distinction between
the corporation and the individual. Ultimately, this distinction is
probably not relevant for First Amendment purposes, because Citi-
zens United v. Federal Election Commission notoriously recognized
that corporations have rights to political speech under the First
203
Amendment. While the scope of those corporate First Amendment
rights have not been fully delimited, the sweeping language of Citi-
zens United indicated no such bounds, providing sufficient reason to
think that corporations would have the same rights as individual citi-
zens to engage in a political boycott, all other things being equal.
Of course, individuals and corporations are not functionally
equivalent in all respects, and there is a more charitable interpretation
of Kontorovich's argument about the scope of Claiborne. Michael
Harper explains that the Supreme Court's First Amendment jurispru-
200. Id.
201. This conclusion with the recent analysis of the district court judge in Order, Jordahl
v. Brnovich, No. CV-17-08263-PCT-DJH, 2018 WL 4732493, at *12 (D. Ariz. Sept. 27,
2018) ("Defendants overstate the meaning of Int'l Longshoreman [sic], which was decided
in the context of federal labor laws.").
203. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 342-43 (2010).
dence protecting individual consumers' right to engage in collective

refusals to purchase does not necessarily entail granting businesses a
comparable right to refuse to deal.20 4 The relevant distinction here is
not the formal distinction between natural person and corporation per
se (which would fall under the sweep of Citizens United), but rather
the functional distinction between consumer and producer. Illustrat-
ing the application of this distinction, Harper argues that the right to
boycott should, as a prescriptive matter, protect the former (i.e., con-
sumers who are deciding which finished products to purchase) but
not the latter (i.e., producers who are purchasing items in the chain of
production). Under this principle, a defender of anti-BDS laws could
argue that BDS boycotts fall outside the holding of Claiborne, inso-
far as Claiborne merely involved a refusal of consumers to purchase
from retailers, whereas the anti-BDS laws generally target businesses
in their purchasing decisions, which are necessarily not consumptive
within Harper's meaning. 205
In any case, if a court were to adopt his reasoning, Harper's
argument would pose a serious hurdle for corporations who would
aim to challenge anti-BDS laws. State anti-BDS laws use language
broad enough to cover consumer boycotts, so a challenger could still
conceivably claim that they are overly broad. However, insofar as
there is no indication in any existing case law, including Claiborne
itself, that this consumer/producer distinction holds legal weight in
the First Amendment context, Harper's argument remains, for now,
merely theoretical rather than legally viable.
d. Domestic v. Cross-BorderExpression
Kontorovich has argued that "the First Amendment simply

does not apply to the extraterritorial actions of foreign corporations,
and only weakly applies to the extraterritorial conduct of U.S.-based
204. Harper, supra note 165, at 428.

205. Harper's distinction between consumer and producer would extend to purchasing
decisions by excluding refusals to purchase finished products and including refusals to
purchase in the chain of production. This is justified, according to Harper, because chain-of-
production purchasing only applies to a subset of the population and is "dictated by more
specialized economic roles than consumption preferences." Id. at 428. The prohibition
would also extend to the purchase of "any good used to support a production effort,"
whether or not the good actually "becomes a material element of any finally consumed
product" or is "used directly to work on the product." Id. at 428 29. Harper himself uses the
examples of new factory windows or industrial cleaning fluid, though it could conceivably
apply to any type of good purchased by any manufacturer, and Harper's principle would
presumably also extend to service providers. See id.
entities. ,,206 Accordingly, and in light of other possible limitations to

the right to participate in political boycotts of Israel, Kontorovich
concludes that any First Amendment protection for BDS activities
would be "quite attenuated. 20 7 Greendorfer presents a substantively
similar argument when he characterizes BDS as having only an
"[a]ttenuated nexus to domestic concerns." 208 While Kontorovich's
use of the term "extraterritorial" is imprecise, his general point indi-
cates a complexity inherent in BDS activities that the Court did not
face in Claiborne.
Legal scholar Timothy Zick provides a useful (and more pre-
cise) tripartite distinction between the intraterritorialFirst Amend-
ment, the cross-territorial(or "cross-border") First Amendment, and
the extraterritorialFirst Amendment.2 0 9 The basic distinction be-
tween the three is the territorial context for the activity in question-
purely domestic, cross-border, and purely foreign-and the corre-
sponding degree of constitutional protection of each. While intrater-
ritorial expression generally receives full First Amendment protec-
tion, foreign entities whose boycott activities do not touch the
territory of the United States would not be subject to any First
Amendment protection at all. Additionally, according to Zick, cur-
rent First Amendment jurisprudence provides "no clear and unam-
biguous precedent holding that communications or associations that
cross borders are protected in any meaningful way. 210 Several areas
of U.S. law already restrict First Amendment rights in a cross-border
context, including restrictions on distributing foreign materials in the
United States, 211 prohibitions on foreign political contributions, 212 re-
strictions on personal access to foreign speakers for any "facially le-
gitimate and bona fide" reason, 213 a mere "freedom" (rather than

207. Id.
208. Greendorfer, supra note 112, at 115 16.
209. TIMOTHY ZICK, THE COSMOPOLITAN FIRST AMENDMENT: PROTECTING
TRANSBORDER EXPRESSIVE AND RELIGIOUS LIBERTIES 25 28 (2014).
210. Timothy Zick, The First Amendment in TransborderPerspective: Toward a More

Cosmopolitan Orientation,52 B.C. L. REV. 941, 942-43 (2011).
211. Meese v. Keene, 481 U.S. 465, 480 (1987) (upholding limits on distribution of
foreign political propaganda in the United States); Lamont v. Postmaster Gen., 381 U.S. 301,
305 (1965) (invalidating a prior restraint requiring a recipient of foreign propaganda to
affirmatively request delivery).
212. Bluman v. Fed. Election Comm'n, 565 U.S. 1104 (2012) (simply affirming the
district court's decision, effectively refusing to extend the reasoning of Citizens United to
foreign citizens temporarily living in the United States); 2 U.S.C. § 441e (2006).
213. Kleindienst v. Mandel, 408 U.S. 753, 769 (1972).
right) under the Due Process Clause to travel abroad for the purpose
of gathering information about foreign cultures, 2 14 a limited right to
associate with aliens located abroad, 215 and no First Amendment
right to access and distribute propaganda materials disseminated by a
foreign government. 216 In a judgment that was later affirmed by the
Supreme Court in the famous Holder v. HumanitarianLaw Project
case, the Ninth Circuit went so far as to explicitly state that "domes-
tic political associations appear to operate at the First Amendment's
core, while cross-border associations reside at its periphery. 217
These lines of cases are significant because insofar as BDS
activities are aimed at Israeli-connected entities-with the Israeli
government as the ultimate target-the activities in question would
probably be either purely extraterritorial (i.e., a foreign entity partici-
pating in a boycott of Israel) or cross-border (i.e., a U.S.-based entity
participating in a boycott of Israel). 2 1 For the anti-BDS statutes that
214. Haig v. Agee, 453 U.S. 280, 306 07 (1981); Zemel v. Rusk, 381 U.S. 1, 16 17
(1965).
215. DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 292 (D.C. Cir.
1989); Palestine Info. Office v. Shultz, 853 F.2d 932, 939 (D.C. Cir. 1988).
216. Gartner v. U.S. Info. Agency, 726 F. Supp. 1183, 1189 (S.D. Iowa 1989).
Furthermore, courts have never invalidated the criminal statutory ban on citizens'
unauthorized communications with foreign regimes and their principals, 18 U.S.C. § 953
(2006), or the federal requirement that certain U.S. institutions obtain a license prior to
sharing certain scientific and technical information with aliens working in the United States,
2 U.S.C. § 441e (2006).
217. Humanitarian Law Project v. Mukasey, 509 F.3d 1122 (9th Cir. 2007). Mukasey
involved a challenge to the criminal enforcement of a statute (18 U.S.C. § 2339A (2006); 18
U.S.C. § 2339B (2006)) prohibiting the provision of material support to designated foreign
terrorist organizations, even though the funding in question was put toward humanitarian
causes. The Ninth Circuit held that while the government's interest in combatting terrorism
is sufficiently urgent to justify curtailing First Amendment rights in the foreign context, a
decision on the material support provisions might have been decided differently had the case
involved purely domestic activities and associations. Ultimately, in Holder v. Humanitarian
Law Project, the Supreme Court upheld the statute, stressing Congress's power over foreign
affairs and the need to protect against the threat of international terrorism, and it explicitly
refused to address whether Congress could extend material support statutes to domestic
terrorist organizations, as it had done with foreign terrorist organizations, without running
afoul of the First Amendment. Holder v. Humanitarian Law Project, 561 U.S. 1, 39 (2010)
("We also do not suggest that Congress could extend the same prohibition on material
support at issue here to domestic organizations. We simply hold that, in prohibiting the
particular forms of support that plaintiffs seek to provide to foreign terrorist groups, § 2339B
does not violate the freedom of speech.").
218. Actions by an American citizen acting in a foreign territory would also be
considered "extraterritorial," but insofar as certain state anti-BDS statutes only apply to
businesses, such conduct would not be relevant.
could be applied to U.S.-based companies, 2 19 the extent of First

Amendment protection depends on the extent to which courts would
consider BDS activities to be "cross-border" and the extent to which
First Amendment protections could apply in such a context. While
Claiborne can be properly described as related to "domestic political
associations"-that is, a local boycott undertaken to vindicate consti-
tutional rights vis-h-vis the local government and local businesses-
protests of Israel from within U.S. territory can more readily be de-
scribed as "cross-border" in nature. That is, insofar as the ultimate
aim of the expression is the Israeli government, the boycotts are in-
herently non-domestic in nature. The Ninth Circuit's reasoning, then,
can be understood to imply that the NAACP boycott would be sub-
ject to greater First Amendment protections than BDS boycotts.220
There is certainly a question of whether a BDS boycott is ac-
tually cross-border expression. Advocating for sanctions against Is-
rael, for example, could perhaps be described as a domestic concern,
particularly in light of the United States' status as a key ally and fi-
nancial supporter of Israel. Whether a BDS supporter could craft a
similar analogy regarding boycotts of and divestment from Israeli-
connected entities is less clear. In any case, if a court were to hold
that the foreign origins (i.e., either the Arab League Boycott or Pales-
tinian civil society organizations) and the foreign object of the boy-
cott (i.e., Israel) render BDS sufficiently foreign (or cross-border, not
domestic), there could be sufficient grounds for limiting individual
First Amendment interests in participating in BDS.
e. In Furtheranceof a ProtectedRight
The boycotters in Claiborneexercised rights, as the Court ex-

plained, "that lie at the heart of the Fourteenth Amendment itself...
to effectuate rights guaranteed by the Constitution itself."' 22 1 For
219. As already noted, two state statutes make clear that they are not intended to be
applied to U.S.-based companies at all. See supra note 80 and accompanying text.
Accordingly, these statutes would seemingly be immune from any First Amendment
challenge under existing Supreme Court jurisprudence.
220. It is important to note that, even if cross-border expression is entitled to less
protection as a matter of principle, states would need to fashion an independent rationale that
would permit it to regulate cross-border speech, because they do not have available the
justifications provided by the Court in Humanitarian Law Projectthat is,conducting
foreign affairs and the regulation of foreign commerce. However, insofar as cross-border
expression is inherently subject to lesser protection than domestic speech, regardless of the
state interest, a state could provide any of the rationales described by the judge in Koontz as
"permissible" government interests.
Greendorfer, this fact is essential to Claiborne'sholding, concluding

that "[t]he First Amendment right must be coupled with another pro-
tected right for the boycott to be eligible for First Amendment protec-
tions. ' ' 22 2 This argument is bolstered by the core of Claiborne's
holding regarding political boycotts-a state's power to regulate eco-
nomic activity cannot justify "a complete prohibition against a non-
violent, politically motivated boycott designed to force governmental
and economic change and to effectuate rights guaranteed by the
Constitution itself.",2 2 3 In Claiborne, individuals who had suffered
racial discrimination were seeking to vindicate their Fourteenth
Amendment rights. In contrast, the BDS Movement does not allege
violations of the U.S. Constitution or any other U.S. law at all-
instead, they224allege violations of international law, outside the scope
of U.S. law. Federal courts have yet to hold in favor of protecting
First Amendment rights to engage in a political boycott that is dis-
connected from the rights of either the protesters themselves or those
closely connected to the protesters.
Another version of Greendofer's argument was presented by
Harper, well before BDS even came into existence. Harper argued
that Justice Stevens's majority opinion in Claiborne, by relying so
centrally on Eastern Railroad Presidents Conference v. Noerr Motor
Freight, implicitly characterized the boycotters' First Amendment
right as an exercise of the "right to petition the Government for a re-
dress of grievances.",225 In Noerr, the Court suggested that the First
Amendment right to petition the government shielded a railroad's
campaign for anti-trucking legislation from liability under the Sher-
man Act. 226 Indeed, Stevens did stress the fact that the Claiborne
boycotters' concerted action was aimed at producing a response from
government by way of direct action against third parties. Insofar
as the First Amendment's reference to "the Government" refers to the
government of the United States, or to a state government via Four-
teenth Amendment incorporation, however, it would seemingly not
apply to the government of Israel or any other foreign government.
222. Greendorfer, supra note 112, at 117 n.16.

223. Claiborne,458 U.S. at 912 14.
224. What Is BDS?, supra note 20.
225. Harper, supra note 165, at 417 18.
226. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 39
(1961).
227. Incidentally, one relevant side-effect of this characterization is that, unlike
characterizing the right as an exercise of speech, association, etc., a petition of government
protects the right to boycott because of its potential economic effects, not in spite of them.
Harper, supra note 165, at 418.
Accordingly, the First Amendment does not protect a U.S. citizen's

right to petition the state of Israel, except insofar as that petition also
implicates speech, association, or some other protected First
Amendment interest vis-d-vis U.S. federal or state government regu-
lation.
In Koontz, the judge sidestepped this issue. The judge recog-
nized that the "main purpose" of the NAACP boycotts was to "influ-
ence governmental action," and the government's power to regulate
the conduct was thereby limited. 22 8 For the same reason, the judge
stated, BDS activities are protected. Koontz and members of the
Mennonite Church, of which Koontz is a part, have "banded together
to express collectively their dissatisfaction with the injustice and vio-
lence the Uperceive, as experienced both by Palestinians and Israeli
citizens." They "seek to amplify their voices to influence change"
and "influence government action," just like the boycotters in
Claiborne.23 The judge did not distinguish between boycotters aim-
ing to influence U.S. government action and the actions of another
government. Neither did the judge distinguish between the vindica-
tion of a domestic right for U.S. persons on U.S. territory and the
vindication of a right under international law for non-U.S. persons on
non-U.S. territory.
This is an issue that could plague BDS advocates in future lit-
igation. There is a parallel between the NAACP protesters in
Claiborne and BDS protesters in the twenty-first century, insofar as
both groups aim to influence social and political policy writ large.
However, there are stark distinctions between the two contexts that
courts will likely need to address and that could prompt a court to
hold in favor of a state government, particularly if a plaintiff, unlike
Koontz, has not "banded together" with other BDS participants and
has no stronger connection to Palestinian rights than the individual's
own political ideals.
D. ConclusionRegarding the FirstAmendment Protectionfor BDS

Activities
It is relatively safe to conclude that BDS activities are entitled

to First Amendment protection. However, whether or not anti-BDS
statutes serve as mere incidental infringements on these interests is
far more complicated. There are permissible government interests
228. Koontz v. Watson, 283 F. Supp. 3d 1007, 1022 (2018).

229. Id.
230. Id.
for regulating boycott activities in general, such as the economic

health of the state. If a state government, in contrast to Kansas in the
Koontz proceedings, were to present compelling evidence that the
state's commercial relations with Israel had been inhibited by boy-
cotts of Israel, then this could serve as a relatively strong government
interest. However, even if the right to participate in boycotts of Israel
were lesser than the right in Claiborne, it is not clear that there is a
sufficient government interest to overcome it. Courts have generally
been reluctant to permit governmental infringement on political ex-
pression. Accordingly, the fate of anti-BDS laws is likely dependent
on the specifics of each particular statute, each particular court's in-
terpretation of the scope of Claiborne, each particular state's presen-
tation of its interest in regulating boycotts of Israel, and each particu-
lar characterization of the BDS activities in question. Furthermore,
the extent of protection for BDS activities will depend on whether a
judge is willing to entertain subtle distinctions-such as between a
consumer boycott and a producer boycott, or a grievance aimed at a
foreign government rather than a U.S.-based government-and how
such a distinction could intersect with a particular state anti-BDS
statute.
III. THE ULTIMATE CONSTITUTIONALITY OF STATE ANTI-BDS

STATUTES
Even if an outright prohibition of BDS-related boycotts were

held to violate the First Amendment, the state anti-BDS statutes al-
ready in existence are not necessarily thereby unconstitutional, be-
cause they do not directly prohibit boycotts of Israel, whether
through civil or criminal sanctions. Instead, they use participation in
boycotts of Israel to trigger mandatory state divestment from the
boycotter and/or a prohibition on the boycotter receiving government
contracts. Accordingly, it is necessary to conduct a second stage of
analysis, considering whether the contract-focused laws violate the
Unconstitutional Conditions Doctrine and whether the investment-
focused laws violate the Supreme Court's jurisprudence regarding the
government's powers to condition spending.
A. Contract-FocusedLaws: Unconstitutional Conditions?
1. The Unconstitutional Conditions Doctrine in General
The Unconstitutional Conditions Doctrine stands for the prin-

ciple that the government may not do "indirectly" what it could not
permissibly do "directly. ' ' 23 1 For example, the government could not
directly compel every citizen of the United States to register as a
Democrat without violating the First Amendment-therefore, it could
not condition receipt of some public benefit on a person registering
as a Democrat without likewise running afoul of the First Amend-
ment. This principle is derived from a long line of twentieth-century
Supreme Court cases, 232 and its clearest expression came in Perry v.
Sindermann in 1972: The government "may not deny a benefit to a
person on a basis that infringes his constitutionally protected interest,
especially his interest in freedom of speech. 2 3 By extension, if
government could not directly prohibit a person from participating in
a political boycott of Israel without violating the First Amendment, it
then cannot do so indirectly by requiring a person or entity to relin-
quish its right as a condition for receiving a government contract or
investment funds.
While the doctrine was an important bulwark against the gov-
ernment's loyalty oaths during the era of McCarthyism, 234 Philip
Hamburger called the Unconstitutional Conditions Doctrine a "Gor-
dian knot ' 235 because of its complexities and unresolved questions.
Meanwhile, Cass Sunstein has argued that the doctrine is inadequate
for its purported purpose and that, indeed, "[s]ometimes the govern-
ment may do indirectly what it cannot do directly. ,,236 Ultimately,
231. Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an

Anachronism (with ParticularReference to Religion, Speech, and Abortion), 70 B.U. L.
REv. 593 (1990).
232. The Supreme Court established in Frost v. Railroad Commission of California that
the government "may not impose conditions which require the relinquishment of
constitutional rights." 271 U.S. 583, 594 (1926). Later, it held that the government cannot
"produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513,
526 (1958).
233. Perry v. Sindermann, 408 U.S. 593 (1972).
234. Edward J. Fuhr, The Doctrine of Unconstitutional Conditions and the First
Amendment, 39 CASE W. RES. L. REv. 97, 102 03 (1989).
235. Philip Hamburger, UnconstitutionalConditions: The Irrelevance of Consent, 98
VA. L. REv. 479, 479 80 (2012).
236. Sunstein argues that the doctrine is "far too crude and general" to address the
complex and varied relationships between constitutional protections and the modem
regulatory state. Cass Sunstein, Is There an UnconstitutionalConditions Doctrine? 26 SAN
DIEGO L. REv. 337, 338 (1989). He concludes that the doctrine is inadequate because it
focuses attention on the largely irrelevant distinction between a "threat" (penalty) and an
"offer" (subsidy), and because it prompts courts to disregard the particularity of the context
and of the right at issue and thereby not ask the relevant question. Whether a condition is
permissible depends on the constitutional provision in question, and the relevant question is
"whether the particular infringement affects a protected interest in a constitutionally
troublesome way, and, if so, whether the government is able to justify any such effect." Id.
explains Sunstein, each case rests on its own merits, bounded by the
appropriate conception of the particular right at issue, not on the di-
rectness/indirectness distinction.23 7 Whatever the ultimate status of
the doctrine as an independent and overarching principle, 238 it is still
in force, and it is relatively clear how it will shape challenges to cer-
tain contract-focused anti-BDS laws.
2. Unconstitutional Conditions on Pre-Existing Government

Contracts
Since the latter half of the twentieth century, the Supreme

Court has consistently held that the government's power to terminate
pre-existing contracts is severely limited if the termination is the re-
sult of the contract-holder's protected First Amendment expressions.
In the earliest of such cases, Pickering v. Board of Education and El-
rod v. Burns, the Court held that the First Amendment rights of pub-
lic employees protect them from certain forms of adverse employ-
ment action. 239 The Court extended the principles from these early
cases to protect independent government contractors in a pair of 1996
cases: Board of County Commissioners v. Umbehr24 and O'Hare
Truck Service, Inc. v. City of Northlake.24 1 Umbehr involved the
non-renewal of a trash-hauling contract after the contractor openly
criticized the local Board of Commissioners. O'Hare similarly in-
volved the removal of a towing contractor from the city's rotation list
of contractors after O'Hare supported the incumbent mayor's oppo-
nent in an election. The Court held in both cases that instances of re-
taliation for protected expressive activities violated the First
Amendment.
237. Id. at 344.

238. Sunstein's argument notwithstanding, the doctrine is undergoing something of a
renaissance in the Roberts Court, as one commentator has argued. Recent Legislation, supra
note 114, at 2036 37.
239. In Pickering, the Court created a balancing test to determine the extent of
protection for government employees who are fired in retaliation for commenting on matters
of legitimate public concern. 391 U.S. 563, 568 (1968). The test balances the interests of
the employee in commenting upon matters of public concern and the interest of the State in
promoting the efficiency of the public services it performs through its employees. Id. In
Elrod, the Pickering balancing test gave way to a categorical rule that the government may
not fire non-policymaking employees solely because of their party affiliation. 427 U.S. 347,
350 (1976).
240. Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668 (1996).
241. O'Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996).
242. Umbehr, 518 U.S. at 686; O'Hare,518 U.S. at714 15.
Based on these cases, it is relatively clear that contract-

focused anti-BDS statutes are unconstitutional insofar as they permit
the termination of pre-existing government contracts on the basis of
the contract-holder's protected conduct (assuming, of course, that the
requisite First Amendment violation is present). Additionally, while
Pickering, Elrod, and O'Hare all relate to the termination of pre-
existing contracts, Umbehr makes clear that First Amendment protec-
tion extends to the termination of the automatic renewal of a con-
tract. 243 One question that remains open is whether the same princi-
ples would apply to the non-automatic renewal of a contract, or
whether such renewal would instead be classified as a new contract.
Furthermore, the strength of these arguments is less than clear when
applied to boycotting conduct rather than relatively traditional forms
of expression, such as party affiliation and candidate support. In any
case, even if there were instances in which a state could permissibly
terminate contracts, it is clear that contract-focused anti-BDS statutes
are over-broad insofar as they permit termination of contracts that fall
within the holdings of these four Supreme Court precedents.
3. Unconstitutional Conditions on New Contracts
While the constitutionality of contract-focused anti-BDS stat-

utes is reasonably clear when applied to preexisting contracts, the
fate of anti-BDS laws is more uncertain as applied to bids for new
government contracts. This uncertainty is primarily a product of the
fact that the Supreme Court has not yet directly addressed the issue.
The Court found no occasion in either Umbehr and O'Hare to decide
whether its holdings extended to bidders or applicants for new gov-
ernment contracts who bear no reliance interest in a preexisting con-
tractual relationship, and Umbehr explicitly reserved judgment on
that question. 244
In the lower courts, the Third Circuit and the Fifth Circuit are
split on the issue. The Third Circuit held in McClintock v. Eichel-
berger that a government's denial of a contract to a new bidder is not
subject to First Amendment scrutiny.2 4 5 In contrast, the Fifth Circuit
in Oscar Renda Contracting, Inc. v. City of Lubbock relied on the
fact that the Supreme Court had already extended the doctrine to ap-
243. Umbehr, 518 U.S. at 685.

244. Id. ("[W]e emphasize the limited nature of our decision today. Because Umbehr's
suit concerns the termination of a pre-existing commercial relationship with the government,
we need not address the possibility of suits by bidders or applicants for new government
contracts who cannot rely on such a relationship.").
245. McClintock v. Eichelberger, 169 F.3d 812 (3d Cir. 1999).
plicants for government employment to thereby extend the protection

to bidders for government contracts. 24 6 Following Umbehr and
O'Hare, in which the Supreme Court held that contractors should be
treated the same as employees, it is reasonable to conclude that the
Fifth Circuit's reasoning in Oscar Renda would win out if and when
the issue is litigated before the Supreme Court.24 7 Indeed, Justice
Scalia argued in dissent in Umbehr and O'Hare that extending First
Amendment scrutiny to the denial of a bid for a new contract is "the
natural and foreseeable jurisprudential consequence" of the two cas-
es 248-though uncertainty persists until such a case should arise.
B. Investment-FocusedLaws: Exceeding Limits on Government

Spending?
Whether a state violates the First Amendment by limiting its

investments in entities because of the entity's speech is, according to
one scholar, without "direct precedent, at least at the Supreme
246. Oscar Renda Contracting, Inc. v. City of Lubbock, 577 F.3d 264, 272 (5th Cir.
2009).
247. The distinction between a state mandate and an optional contract cannot be
plausibly sustained for reasons already pointed out, and because it misidentifies the harm.
The harm to a contractor arises not from the decision to sign the certification but rather from
the choice that the anti-BDS statutes force them to make that is, the choice between
contracting with the state or supporting a boycott of Israel. See Koontz v. Watson, 283 F.
Supp. 3d 1007, 1026 (D. Kan. 2018). Other commentators have reached the same
conclusion that the denial of a bid because of BDS activities, assuming the activities are
protected under Claiborne, is probably unconstitutional. Recent Legislation, supra note 114,
at 2037. In finding a violation of the Unconstitutional Conditions Doctrine, the orders in
Koontz and Jordahl lend further credence to this conclusion, because the facts involved
individuals attempting to obtain a supplemental government contract (in Koontz) and a
renewal of a government contract (in Jordahl). Furthermore, in arguing that anti-BDS
statutes do not run afoul of the Unconstitutional Conditions Doctrine, Greendorfer rests on
the assumption that the doctrine is not implicated because BDS activities are not protected
by the First Amendment at all. Marc A. Greendorfer, Boycotting the Boycotters: Turnabout
Is Fair Play Under the Commerce Clause and the UnconstitutionalConditionsDoctrine, 40
CAMPBELL L. REv. 29, 33 (2018). The implication by omission is that, assuming a
prohibition on BDS would be a substantive First Amendment violation, anti-BDS statutes
would impose unconstitutional conditions on government contracts.
248. Umbehr, 518 U.S. at 709 10. In other contexts, courts have held that constitutional
protections apply to applicants in addition to benefits-holders. For example, applicants for
government benefits, under certain conditions, are entitled to protections under the Due
Process Clause. See, e.g., Kapps v. Wing, 404 F.3d 105 (2d Cir. 2005). Similarly, if the
government cannot arbitrarily deny an application for government benefits, it cannot deny a
bid for a government contract due to the protected speech of the bidder.
Court.' ' 249

Nevertheless, there are two lines of case law that provide
clues regarding the constitutionality of investment-focused anti-BDS
laws. A Congressional Research Service report on the BDS Move-
ment identified the Supreme Court's line of cases analyzing re-
strictions on government funding in general as the closest preceden-
tial analogue for state statutes mandating divestment from entities
involved in BDS-related activities, 250 and this is certainly the case.
However, the still-nascent case law involving mandatory foreign di-
vestment of public funds (for example, from Sudan or Iran) may also
become highly relevant for the constitutionality of anti-BDS laws, at
least by way of contrast and foil.
1. Spending Power Cases: Unconstitutional Conditions Redux
The Supreme Court articulated its standard for determining

whether restrictions on spending that also affect expression run afoul
of the First Amendment in USAID v. Alliance for Open Society Inter-
national: "[T]he relevant distinction that has emerged from our cases
is between conditions that define the limits of the government spend-
ing program-those that specify the activities Congress wants to sub-
sidize-and conditions that seek to leverage funding to regulate
speech outside the contours of the program itself. 2 5 1 In other words,
courts are to judge whether the government is simply expressing its
funding priorities, which is permissible, or whether it is wielding the
threat of withdrawal of funding to pressure people to alter their ex-
pressions, which is impermissible. In essence, this represents another
version of the Unconstitutional Conditions Doctrine presented
above. 252 If the government cannot directly coerce a person to under-
take a particular expressive act, then it cannot indirectly coerce a per-
son to undertake that act by threatening to withhold government
funds.
In Alliance for Open Society, the Court struck down a federal
statute that conditioned the issuance of public funds to nongovern-
mental organizations to combat HIV/AIDS worldwide on the organi-
zation explicitly opposing prostitution as a matter of policy. Such a
249. Edelman, supra note 9 (quoting University of Chicago law professor Geoffrey
Stone).
250. ZANOTTI, supranote 52, at 23. While the Constitution vests the Spending Power in
the U.S. Congress, the same First Amendment restrictions would apply to conditions on state
government spending. Id. at 19.
251. Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 214 15
(2013).
252. See supranote 232 and accompanying text.
provision runs afoul of the First Amendment, the Court held, because
it compelled speech on the part of organizations that could not be
"confined within" the program itself. 253 Congress can prevent the
use of funds for particular purposes, such as those that support prosti-
tution, but it cannot permissibly restrict funding to those organiza-
tions that "pledge254allegiance to the Government's policy of eradicat-
ing prostitution."'
Like the statutory program in Alliance for Open Society, in-
vestment-focused anti-BDS laws effectively condition the investment
of state funds on the funded entity refraining from undertaking a par-
ticular form of expressive conduct-that is, boycotts of Israel. The
fact that the entities remain entitled to publicly denounce Israel and
support BDS is irrelevant-in other words, the mere fact that an enti-
ty can protest through other means does not limit the extent to which
the entity's expression is inhibited. The requirement in Agency for an
entity to adopt an anti-prostitution policy did not foreclose other
manners of engaging with prostitution that would be inconsistent
with such a policy, but it nevertheless violated the First Amendment.
Likewise, assuming a direct prohibition on BDS would violate the
First Amendment, the mere fact of alternative means of supporting
BDS does not reduce the extent to which conditioning the receipt of
state funds on refraining to boycott Israel would also violate the First
Amendment.
2. Foreign Divestment Cases
Mandatory divestment of public pension funds has been a

common strategy for states (California in255 particular) to 2516
oppose for-
eign atrocities
257 and human 258
rights abuses, health crises, gun vio-
259
lence, climate change, and restrictive immigration policy.
253. Agency for Int'l Dev., 570 U.S. at 221.

254. Id. at 220.
255. Shira Schoenberg, Pension Politics: The History of Divestment in Massachusetts,
MASS LIVE (May 8, 2014, updated 7:14 AM), http://www.masslive.com/politics/index.ssf/
2014/05/the history of divestment in m.html [https://perma.cc/437Y-9793] (describing
Massachusetts's divestment from Iran, Sudan, and South Africa).
256. Id.; Robin Respaut, CaIPERS Votes to Broaden Ban on Tobacco Investments,
REUTERS (Dec. 19, 2016, 6:57 PM), https://www.reuters.com/article/us-california-calpers-
tobacco/calpers-votes-to-broaden-ban-on-tobacco-investments-idUSKBN1482FE [https://
perma.cc/NFD5-29Q9] (describing California's divestment from tobacco companies).
257. Kriston Capps, Why Public Pension Funds Are Slow to Divest from Gun
Manufacturers, CITYLAB (June 15, 2016, 6:48 PM), https://www.citylab.com/life/2016/06/
Assuming such divestment campaigns withstand fiduciary challeng-

es, 2 60 such laws could face an additional hurdle when the divestment
affects expressive activities. Challenges to the legality of such state
divestment policies have not yet reached a federal appellate court, let
alone the Supreme Court. Indeed, the only state pension divestment
case that has been fully litigated in federal court
26 1
is the 2007 case Na-
tional Foreign Trade Council v. Giannoulias.
In Giannoulias, the U.S. District Court for the Northern Dis-
trict of Illinois considered the constitutionality of a 2005 Illinois stat-
ute restricting the investment of state funds, including pension funds,
in Sudan-connected entities and institutions, and also restricting the
deposit of state funds in financial institutions that do business with
Sudan-connected entities. 262 The Court ultimately struck down the
statute on preemption grounds-the two provisions of the statute
conflicted with a federal statute and with the federal government's
authority to govern foreign affairs and regulate foreign commerce.263
how-cities-fund-gun-manufacturers/487019/ [https://perma.cc/NF7J-36RX] (discussing

various local and national firearms divestment initiatives, including the divestment of
California's public retirement fund from firearm manufacturing).
258. Anita Chabria, California Passes Bill Forcing Biggest Pension Funds to Divest
from Coal, GUARDIAN (Sept. 2, 2015, 6:48 PM), https://www.theguardian.com/environment/
2015/sep/02/california-pension-funds-divest-coal [https://perma.cc/Y2P5-8VTA] (discussing
California's divestment from coal companies).
259. David Siders, Democrats Turn the Screws on Border Wall Builders, POLITICO (Apr.
26, 2017, 6:41 PM) https://www.politico.com/story/2017/04/26/trump-border-wall-
democrats-california-237659 [https://perma.cc/MUG3-KPME] (describing proposed
legislation in California, New York, and Rhode Island to divest state funds from companies
involved in constructing a border wall between the United States and Mexico).
260. Because divestment for political rather than financial reasons compromises the
financial integrity of the fund, some have concluded that "[p]ension funds should not be in
the business of divestment." Walling OffAssets Is Wrong, PENSIONS & INVESTMENTS (April
3, 2017), http://www.pionline.com/article/20170403/PRINT/304039998/walling-off-assets-
is-wrong. [https://perma.cc/H7GG-DCPE]. Indeed, divestment from BDS-involved
companies could open up state pension funds to lawsuits for violation of fiduciary duty in
some states. Significantly, however, Arizona, Arkansas, Colorado, Illinois, North Carolina,
Oklahoma, and Texas explicitly preempt the application of any conflicting state law related
to fiduciary duties.
261. Nat'l Foreign Trade Council, Inc. v. Giannoulias, 523 F. Supp. 2d 731 (N.D. Ill.
2007).
262. Id.
263. In Giannoulias, the court held that the statute's restrictions on the deposit of state
funds unconstitutionally conflicted with federal law and interfered with the federal
government's power to conduct foreign affairs, based on its "lack of flexibility, extended
geographic reach, and impact on foreign entities." Id. at 741-42. It reached the opposite
conclusion concerning the statute's provision on pension fund divestment, but found that it
The court in Giannoulias did not address any First Amendment is-
sues related to the ban on engaging in business with Sudanese com-
panies and financial institutions that do business with Sudanese com-
panies. 264 If the Illinois statute had not been preempted, there are
strong reasons to think that the law would have withstood a First
Amendment challenge.
While it is tempting to draw a parallel in this regard between
the Illinois law and anti-BDS laws, there are at least three features of
the Illinois law that contrast with investment-focused anti-BDS laws
and that together would support the opposite conclusion. First, Pales-
tine Legal urged state legislators to differentiate between action
against companies involved in BDS, and previous state action against
companies that engaged in "prohibited business operations" in Iran
and Sudan, because the latter was based on the U.S. State Depart-
ment's designation of both countries as "state sponsors of terrorism"
rather than on the basis of core political speech. While this con-
tention is certainly true, it is not a strong argument in light of the
relatively stronger local interests involved with a state regulating a
boycott that can have negative economic effects compared with those
involved in exerting pressure on a foreign government.
Second, the Illinois law restricted investment directly in for-
eign-connected entities and in institutions that actively do business
with foreign-connected entities, while investment-focused anti-BDS
laws restrict investment in entities that refuse to conduct business
with foreign entities. This fact is perhaps marginally relevant for the
First Amendment inquiry, insofar as the Illinois statute regulated
conduct that was more actively cross-border in nature, and perhaps
thereby would be rendered as less constitutionally protected than
domestic BDS advocacy 266 or other BDS activities that are less clearly
cross-border in nature.
violated the Commerce Clause by regulating the investment choices of municipal pension
funds in addition to state-controlled pensions. Id. at 748.
264. Nor were any First Amendment claims raised by the plaintiff in the case. The only
reference to the First Amendment in any of the filings is a bizarre argument by the State of
Illinois that "the purpose and spirit of the First Amendment are embodied in a State
divestment law that seeks to, much like a consumer boycott, prohibit its pension funds from
investing in a genocidal country such as Sudan," citing Claiborne, and an implication that
states have First Amendment rights. Defendant's Memorandum in Response to Plaintiff's
Motion for a Preliminary Injunction at 6, Giannoulias,523 F. Supp. 2d 731.
265. Palestine Legal Urges FL Lawmakers to Withdraw Anti-Boycott Bill, PALESTINE
LEGAL (Oct. 20, 2015), https://palestinelegal.org/news/2015/10/20/palestine-legal-urges-fl-
lawmakers-to-withdraw-anti-boycott-bill. [https://perma.cc/LT7H-28BK].
266. See supranote 206 and accompanying text.
Third, and most significantly, it would be much more difficult

to claim that commercial relations with Sudanese companies are "po-
litical" or predominantly "expressive" in nature, such that they could
receive significant First Amendment protection, than it is to claim
that refusals to conduct business with Israeli entities are political in
nature. Kontorovich argued that, if refusing to conduct business can
be considered political expression, then conducting business itself
must likewise be considered political expression. 267 If Kontorovich
is correct, then there would be no relevant distinction between the Il-
linois Sudan Act and the various investment-focused anti-BDS stat-
utes. This is an attractive argument, at least in principle, especially if
there were some campaign or movement to support a particular coun-
try, and the investor explicitly linked the choice to invest with a de-
sire to support that cause rather than to pursue financial incentives.
In such a case, it would be more likely that such business dealings
could be considered protected expressive conduct, much like domes-
tic campaign contributions are considered protected First Amend-
ment activities. 268 However, such investments are still distinct from
political contributions in one key way-the former yields a financial
return (that is, commercial advantage), while the latter does not. This
factor appears decisive toward the conclusion that the permissible
regulation of foreign-connected entities does not thereby entail that
anti-BDS statutes are similarly permissible.
CONCLUSION
In 2016, after South Carolina passed its contracts-focused

law, the HarvardLaw Review concluded that the significance of anti-
BDS laws is "primarily symbolic. ,,269 In some respects, this prophe-
cy has proven to be a poor reflection of reality, as borne out in
Koontz, Jordahl, and the farcical incident in Dickinson, Texas, re-
garding flood relief. However, there is some truth to it. In December
2017, when New York released the list of companies from which its
public pension plan would need to divest, pursuant to the require-
ments of Governor Cuomo's executive order, none of the ten compa-
nies listed were U.S.-based entities.2 70 While the implications for

268. See McCutcheon v. Fed. Election Comm'n, 472 U.S. 185 (2014); Buckley v.
Valeo, 424 U.S. 1 (1976).
269. Recent Legislation, supra note 114, at 2038.
270. The list has expanded to twelve companies, as of June 2018. N.Y. OFFICE OF GEN.
SERVS., INSTITUTIONS OR COMPANIES DETERMINED TO PARTICIPATE IN BOYCOTT,
those companies could be significant, Cuomo's grandiose 2016 dec-

laration-"if you boycott Israel, New York will boycott you"-lost
some of its bite.
As the HarvardLaw Review correctly predicted, the "biggest
hurdle" for challenging anti-BDS laws is and will be finding a boy-
cotting entity with standing to sue, both in light of the relative weak-
ness of the BDS movement in the United States, and more so because
of the de jure and de facto limitations of state anti-BDS laws. While
New York's listing of only foreign entities reduces the extent of the
law's impact in opposing BDS activists, it also reduces the likelihood
that a suit could be brought to challenge the executive order on First
Amendment grounds. This is in addition to the various inherent limi-
tations to anti-BDS laws discussed above, 27 1 including the fact that
many anti-BDS laws do not cover the full range of BDS activities,
such as divestment from Israeli-connected entities and advocacy for
sanctions against Israel.
The differences in anti-BDS laws outlined in Section I are al-
so deeply significant, because district courts must consider state anti-
BDS laws one at a time, and structural differences between laws will
likely result in some laws being upheld and others struck down. The
general applicability of judicial decisions will depend on which spe-
cific elements courts deem to be impermissible and which limitations
are sufficient to sustain the laws against constitutional challenge. Fu-
ture litigation might very well result in the invalidation of portions of
anti-BDS laws and prompt states to restrict the scope of their laws.
For example, states with investment-focused laws could avoid First
Amendment liability by carving out all of the entities that would have
standing to sue, following the lead of Colorado and Illinois. Litiga-
tion may never reach federal appellate courts for a judgment on the
merits at all, much less the Supreme Court, if legal challenges are
mooted by states, as Kansas did by reducing the scope of its anti-
BDS law to keep it on the books. If this becomes a trend, however,
state anti-BDS laws may ultimately be reduced to symbolic denun-
ciations of BDS. In the meantime, states may get precisely what they
want-that is, a symbolic victory in passing the laws and also deter-
rence of at least some BDS activity.
On the legal front, significant uncertainties surrounding the
fate of anti-BDS laws will persist until the Supreme Court weighs in
on several unsettled lines of doctrine. While the core First Amend-
ment issues are relatively clear, in light of Claiborne and other relat-
DIVESTMENT, OR SANCTIONS ACTIVITY TARGETING ISRAEL (2018), https://www.ogs.state.

ny.us/eo/157/Docs/EO157_InstitutionsCompanies List.pdf [https://perma.cc/CBX8-GJJZ].
271. See supra notes 99 102 and accompanying text.
ed cases, several factors pose a significant hurdle to obtaining con-

sistent and widely applicable judgments regarding anti-BDS laws.
For example, there remains a lack of clarity regarding the scope of
the First Amendment in cross-border situations and with regard to
political boycotts that are not aimed at vindicating domestic rights.
Furthermore, after the First Amendment questions are resolved, ques-
tions remain regarding the scope of the Unconstitutional Conditions
Doctrine for new contracts, renewals of contracts, and states divest-
ing from entities involved in purportedly objectionable behavior. Ul-
timately, based on the constitutional doctrines as they exist, many of
the anti-BDS laws are likely unconstitutional, at least in part, but de-
termining the precise limits of the state power to boycott a political
boycott will undoubtedly proceed on a case-by-case manner unless
and until the Supreme Court sees fit to weigh in. However, even a
Supreme Court decision might not resolve the relevant issues, de-
pending on the specific cases before the Court and the scope of the
Court's holdings in those cases.
In any event, the general principles and framework outlined in
this Note apply to political boycotts in general and many other con-
texts in which expression is central, not just BDS. For example, the
principles at stake in a challenge to the constitutionality of state anti-
BDS laws are directly relevant to consumer boycotts of multinational
corporations, the First Amendment rights of corporations in the chain
of production, and the rights of U.S. persons to express ideas in
cross-border settings, among other contexts. While courts may simp-
ly ignore legal subtleties in favor of sweeping principles, blunt reso-
lutions to such complex legal and factual circumstances-through,
for example, a hasty extension of Claiborne'sholding-will come at
the cost of stable legal footing for those who wish to challenge a par-
ticular political order as much as those who wish to preserve that or-
der. Regardless of the manner of resolution, though, it is clear that
the adjudication of anti-BDS laws will help shape the future of pro-
test and the tools available to spark political change, particularly on
the international stage.
Timothy Cuffman *
* Executive Editor, Columbia Journal of Transnational Law; J.D. Candidate,

Columbia Law School, 2019. I would like to thank the Journal staff for their thoughtful edits
and feedback. I would also like to thank Danielle, Emmanuelle, and Fiere: "... this is what
is still ours."

57 Colum JTransnatl L115

Uploaded by

Copyright:

Available Formats

57 Colum JTransnatl L115

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

57 Colum JTransnatl L115

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Tue Oct 3 10:29:24 2023

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

The State Power to Boycott a Boycott: The

Columbia Journal of Transnational Law

The Boycott, Divestment, Sanctions ("BDS") Move-

This Note aims to remedy the relative dearth of thor-

five distinct arguments that the anti-BDS laws merely

INTRODUCTION ............................................................................. 117

Protection for BDS Activities ........................................ 161

1. The Unconstitutional Conditions Doctrine in

1. Spending Power Cases: Unconstitutional

In October 2017, the city of Dickinson, Texas, required appli-

drew Cuomo issued the following triumphant words after signing an

banal exercises10 of the government's authority to choose how to spend

ity of the First Amendment to the BDS context, including a compre-

A. The Boycott, Divestment, SanctionsMovement

Boycotts of Jewish goods and services originating in Palestine

treatment of Palestinians. For example, in the spring of 2002, profes-

Drawing inspiration from the South African anti-apartheid

ly fashioned so as to avoid anti-boycott laws.

29. See Artists' Pledge, ARTISTS FOR PALESTINE UK, https://artistsforpalestine.org.

checkpoints; 35 Caterpillar, whose bulldozers have been used in the

B. Anti-Boycott Provisions of United States Law

1. The Federal Anti-Boycott Regime

The U.S. federal government first enacted legislation relating

41. What Is BDS?, supra note 20.

eral regulations of boycotts against Israel in the Export Administra-

address BDS-related activities in some respects. The first, the Israel

2. State Statutory Regimes

Perhaps due to the mismatch between existing federal anti-

Actions, S.170 - Combating BDS Act of 2017, CONGRESS.GOV, https://www.congress.

There is wide variation in state anti-BDS laws, including dif-

State anti-BDS laws have taken three broad forms:

Governors United Against BDS statement is available at https://www.ajc.org/sites/

and twelve states have investment-focused laws. 6 2 Of these, seven

States vary widely in terms of the actions that trigger manda-

State anti-BDS laws vary in terms of the geographic scope of

d. Unique Featuresof State Laws

Some anti-BDS laws take measures to prevent constitutional

Some states set monetary thresholds-for example, Alabama's stat-

II. THE FIRST AMENDMENT AND BDS

A. The FirstAmendment in General

The First Amendment stands as a safeguard against unwar-

84. ALA. CODE § 41-16-5(c)(2) (2016).

ever, it has more flexibility to regulate expressive conduct, such as

troversy became moot because the statute no longer applied to

B. PoliticalBoycotts and the FirstAmendment: Claiborne Hardware

Opponents of anti-BDS laws routinely invoke NAACP v.

105. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

have instead interpreted Claiborne's holding to be much narrower,

C. "Inherently Expressive ": Whether BDS Activities Should Receive