The Problematic Nature of Secondary Boycotts on Political Speech

Recently secondary boycotts have become the hot thing in politics. A secondary boycott is when a person decides to boycott some other person or entity because that person or entity does business with yet a third person or entity to whom the boycotter objects.

For example, don’t like the speech of the American Legislative Exchange Council? Boycott companies that contribute to it. Don’t like the speech of Rush Limbaugh or Glen Beck? Boycott businesses that advertise on their shows. Don’t like all the positions of Minnesota gubernatorial candidate Tom Emmer? Boycott Target, which contributed the pro-business group Minnesota Forward, which supported Emmer. Don’t like California’s Proposition 8 (restricting same-sex marriage)? Boycott the restaurant whose owner’s daughter gave to the Prop 8 campaign, or the arts company that employs an artistic director who supported the campaign.

While these secondary boycotts, as the above examples indicate, are largely a left-wing phenomena, that is not entirely so. For example, some conservatives are boycotting the Florida Marlins baseball team because its field manager said a few nice things about Fidel Castro.

Secondary boycotts should not be confused with primary boycotts. A primary boycott is a decision not to do business with a person because of a direct dispute. Thus, a decision not to patronize a business that discriminates on the basis of race is a primary boycott. Primary boycotts have a long and generally laudatory history.

But secondary boycotts can quickly turn ugly. For example, the boycott of contributors to ALEC comes about because state lawmakers who are members of ALEC had, working through the ALEC framework, developed and introduced bills to require voters to present photo ID in order to vote. Polls consistently show strong support for voter ID laws, but such laws are strongly opposed by some on the left, who argue that they have a discriminatory impact on minority voters. Hence the boycott. But many corporate donors to ALEC are also corporate donors to the Congressional Black Caucus, which strongly opposes voter ID laws. Supporters of voter ID – whom, if we are to believe the polls, vastly outnumber critics – could decide to boycott these companies. Similarly, opponents of same sex marriage, who appear to be at least equal if not superior in numbers to proponents, could start boycotting the supporters and those who give them financial support. Soon everyone is boycotting everyone, and it’s not pretty.

It has long been recognized that secondary boycotts render the social fabric by making it difficult for people to simply live their lives. They interfere with peaceful trade, and force innocent bystanders into disputes between others. For that reason, secondary boycotts are generally illegal under international law (e.g. the U.S. may boycott Iran, but it cannot boycott a third country because that third country continues to do business with Iran). In the common law countries (the U.S., U.K., Australia, etc.), secondary boycotts are generally illegal in labor disputes; the European continental countries allow secondary boycotts but only under narrow conditions.

Secondary boycotts are particularly unattractive when the reason for the boycott is to squelch speech. In each of the examples I’ve given above, the reason for the secondary boycott is to harm the third person economically so that that third person will bring pressure to bear on the original speaker to, well, to shut up. It is an abandonment of the field of ideas for the field of coercion. Moreover, while some of the examples above involve boycotts by those holding minority views (as in the voter ID and same sex marriage disputes), once the secondary boycott mentality takes hold, it will be far more likely to be used to stifle minority points of view. Obviously the many boycotting the few is more devastating in most cases than the few boycotting the many. None of this can be a positive development for democracy and civil debate.

Indeed, I think most of the organizers of these secondary speech boycotts support them because they haven’t given much thought to what the world would look like if everyone acted that way. But the other day a friend, an executive at a midsize company in Wisconsin, raised the question of whether he should hire someone who had signed a petition to recall Wisconsin Governor Scott Walker, even though the applicant was qualified for the job. Voters and groups on the political right are not going to sit by forever without organizing their own secondary boycotts. And when that happens, the political left, currently so enamored of secondary speech boycotts, may or may not come out “victorious.” But whomever would seem to win, it would come at an enormous cost to civil, rational debate, and would almost certainly lead to the stifling of many valuable political ideas and innovations.

In a symposium yesterday sponsored by the Price School of Public Policy at USC and the California Fair Political Practices Commission, I raised these serious problems in the context of mandatory political disclosure. I noted that increasingly, mandated disclosure of political activity was not being used for any of the three generally cited and judicially recognized legitimate state interests: exposing patterns of shirking or corruption (where an officeholder may simply be doing the bidding of a small number of donors rather than the constituency), assisting in enforcement of contribution limits, and providing voting cues to the public. Rather, they are increasingly used for the purpose of organizing secondary boycotts. This, I suggested, is not a good thing, and a reason to move carefully on the calls for ever increasing disclosure. Indeed, I suggest that government has no compelling interest in assisting its citizens to organize boycotts of disfavored views.

Quite unsurprisingly, I suppose, it has already been suggested by one liberal group that I favor outlawing such secondary boycotts of political speakers, and to be honest, I can understand why if one wasn’t paying close attention they might conclude that. After all, we live in a society in which many people believe that what is not banned must be required; that disagreement is censorship, and so on. So to be even more clear than I was at yesterday’s symposium, I do not want legal action to limit these secondary boycotts. In fact, ironically, it was Richard Briffault, another panelist, who suggested that if mandatory disclosure leads private actors to harm speakers, the law should provide still added remedies for the person who has now been injured, rather than trimming back on disclosure itself (not that Richard favors prohibitions on these secondary speech boycotts).

In any event, we shouldn’t limit these secondary speech boycotts. For one thing, leaving aside all else, it would be virtually impossible to do. But it is not clear that government has any compelling interest in forcing people to publicly disclose their political activity so that others can organize secondary boycotts. And to the extent that that is increasingly the primary use made of compulsory disclosure of political contributions and activity, we ought to move very carefully before extending the scope of disclosure laws. Indeed, it provides a strong rationale for limiting the scope of compulsory disclosure of political speech, contributions, and activities. This discussion starts at about the 45 minute mark yesterday, and just past the 57 minute mark in yesterday’s discussion I think I make clear, lest there have been any doubt, that the issue is not one of making these secondary boycotts illegal, but of recognizing that they are a harm to be considered in forcing people to disclose their political activity, and that government has no interest in intruding on privacy and upsetting the historic protection of anonymous speech in order to assist citizens in organizing boycotts.

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