No. 22-379
`IN THE
`Supreme Court of the United States
`
`ARKANSAS TIMES LP,
`Petitioner,
`
`v.
`MARK WALDRIP, as Trustee of the University of
`Arkansas Board of Trustees, et al.,
`Respondents.
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Eighth
`Circuit
`
`
`
`
`
`
`BRIEF OF AMICI CURIAE T’RUAH, J STREET,
`AMERICANS FOR PEACE NOW, AND
`PARTNERS FOR PROGRESSIVE ISRAEL IN
`SUPPORT OF PETITIONER
`
`Joseph W. Mead
` Counsel of Record
`Elizabeth R. Cruikshank
`Mary B. McCord
`Institute for Constitutional
`Advocacy and Protection
`Georgetown University
`Law Center
`600 New Jersey Ave., NW
`Washington, DC 20001
`(202) 662-9765
`jm3468@georgetown.edu
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`ARKANSAS TIMES LP,
`Petitioner,
`
`v.
`MARK WALDRIP, as Trustee of the University of
`Arkansas Board of Trustees, et al.,
`Respondents.
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Eighth
`Circuit
`
`
`
`
`
`
`BRIEF OF AMICI CURIAE T’RUAH, J STREET,
`AMERICANS FOR PEACE NOW, AND
`PARTNERS FOR PROGRESSIVE ISRAEL IN
`SUPPORT OF PETITIONER
`
`Joseph W. Mead
` Counsel of Record
`Elizabeth R. Cruikshank
`Mary B. McCord
`Institute for Constitutional
`Advocacy and Protection
`Georgetown University
`Law Center
`600 New Jersey Ave., NW
`Washington, DC 20001
`(202) 662-9765
`jm3468@georgetown.edu
`
`
`
`
`
`
`
`i
`TABLE OF CONTENTS
`
`Page
`INTEREST OF AMICI CURIAE .............................1
`SUMMARY OF ARGUMENT ..................................3
`ARGUMENT.............................................................5
`I. FROM THE AMERICAN REVOLUTION TO
`THE PRESENT, AMERICANS HAVE
`INVOKED THEIR RIGHT TO BOYCOTT to
`EXPRESS DISAGREEMENT WITH
`GOVERNMENT POLICIES. .............................5
`A.
`The Boycott in Early America ...............5
`B.
`Americans Boycott Nazi Germany ........8
`C.
`Civil Rights Boycotts ...........................11
`1. Montgomery Bus Boycott .....................12
`2. Divestment from South Africa .............13
`3. Claiborne County Boycott ....................14
`II. THE DECISION BELOW JEOPARDIZES THE
`RIGHTS OF JEWS AND NON-JEWS ALIKE.
` ..........................................................................15
`A.
`Boycotting is a Jewish Tradition as
`Well as an American One ....................15
`The Decision Below Ignores the Past
`and Threatens the Present of American,
`and Jewish, Boycotts ...........................18
`
`B.
`
`
`
`
`
`C.
`
`ii
`The Claim that Political Speech is
`Motivated by Antisemitism Is Not Itself
`Grounds for Bringing it Beyond First
`Amendment Protection ........................21
`D. A Robust First Amendment Protects
`the Jewish Community and Other
`Minority Groups ..................................25
`CONCLUSION .......................................................27
`
`
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Ark. Times LP v. Waldrip as Tr. of Univ. of
`Ark. Bd. of Trs.,
`37 F.4th 1386 (8th Cir. 2022) ............................. 18
`Gayle v. Browder,
`352 U.S. 903 (1956) ............................................. 12
`NAACP v. Alabama ex rel. Flowers,
`377 U.S. 288 (1964) ....................................... 13, 19
`NAACP v. Claiborne Hardware Co.,
`458 U.S. 886 (1982) ..................................14, 15, 23
`
`STATUTES
`Ala. Code § 41-16-5(a)(1) .......................................... 20
`Ark. Code § 25-17-101 .............................................. 25
`Ky. Rev. Stat. § 41.480 ............................................. 21
`Ky. Rev. Stat. § 45A.607 .......................................... 20
`Ohio Rev. Code § 9.76 (B) ........................................ 20
`S.C. Code § 11-35-5300(A) ....................................... 20
`Tex. Gov. Code § 808.001(1) ..................................... 19
`W. Va. Code §§ 12-1C-1 to -7 ................................... 21
`Wyo. Stat. § 13-10-302 ............................................. 21
`
`
`
`
`
`iv
`OTHER AUTHORITIES
`$500,000 Sought for Nazi Boycott, N.Y. Times,
`Sept. 11, 1933, at 8 ............................................. 10
`AJC Calls for Vigilantes Body to Aid Boycott,
`Jewish Daily Bulletin, June 22, 1934,
`https://perma.cc/2EU2-NRSZ ............................. 10
`American Jewish Committee, The Anti-
`German Boycott: A Statement of the
`Position of the American Jewish Committee
`(1935) ................................................................... 23
`Anti-Boycott Legislation Tracker, JustVision,
`https://justvision.org/boycott/legislation-
`tracker ................................................................. 21
`Jeremy Ben-Ami & Jill Jacobs, Americans
`Shouldn’t Forfeit Their Freedom of Speech
`So States Can Support Israel, NBC News
`(Jan. 15, 2020), https://perma.cc/5A5Z-
`8TB7 .................................................................... 24
`Boycott ‘Antisemitic’ Ben & Jerry’s, Says
`Simon Wiesenthal Center, The JC (Oct. 21,
`2021), https://perma.cc/XCS7-DPRN ................. 20
`Boycott Fight to Finish, Wise Insists at
`Geneva, Jewish Daily Bulletin, Aug. 22,
`1934, https://perma.cc/S3PV-E6R7 .................... 10
`Boycott Only Weapon to Fight Nazi
`Intolerance, General Clinnin Declares,
`Jewish Daily Bulletin, Sept. 12, 1933, at 2,
`https://perma.cc/8M9C-Q52G ............................. 11
`
`
`
`
`
`v
`Br. of Amici Curiae States of Arizona et al.,
`Ark. Times v. Waldrip, No. 19-1378 (8th
`Cir.), 2021 WL 1499712 ...................................... 24
`Br. of Amicus Curiae American Jewish
`Congress, NAACP v. Claiborne Hardware
`Co., No. 81-202, 1981 WL 390216 (1981) ........... 18
`Br. of Amicus Curiae Shurat Hadin-Israel
`Law Center, Ark. Times v. Waldrip, No. 19-
`1378 (8th Cir.), 2019 WL 2526775 ..................... 21
`Br. of Amicus Curiae Zachor Legal Institute,
`Ark. Times v. Waldrip, No. 19-1378 (8th
`Cir.), 2021 WL 1603980 ...................................... 22
`T.H. Breen, The Marketplace of Revolution:
`How Consumer Politics Shaped American
`Independence (2005) ............................................. 7
`Cecelie Counts, Divestment Was Just One
`Weapon in Battle Against Apartheid, N.Y.
`Times, Jan. 27, 2013,
`https://perma.cc/PWK3-BE6Q ............................ 13
`Clevelanders Rally Behind Bus Boycotters,
`Cleveland Call & Post, at 1B (Mar 17,
`1956) .................................................................... 16
`Donald R. Culverson, The Politics of the Anti-
`Apartheid Movement in the United States,
`1969-1986, 111 Pol. Sci. Q. 127 (1996) ............... 13
`Carol Faulkner, The Root of the Evil: Free
`Produce and Radical Antislavery, 1820-
`1860, 27 J. Early Republic 377 (2007).................. 8
`
`
`
`
`
`vi
`Marjorie N. Feld, Nations Divided: American
`Jews and the Struggle over Apartheid
`(2014) ................................................................... 16
`Monroe Friedman, Consumer Boycotts:
`Effecting Change Through the Marketplace
`and Media (1999) ................................................ 15
`George Washington to the Hebrew
`Congregation in Newport, Rhode Island, 18
`August 1790, Founders Online, National
`Archives, https://perma.cc/XM7V-SLTX ............ 26
`Lawrence B. Glickman, Buying Power: A
`History of Consumer Activism in America
`(2009) ............................................................... 8, 15
`Moshe Gottlieb, In the Shadow of War: The
`American Anti-Nazi Boycott Movement in
`1939–1941, 62 Am. Jewish Hist. Q. 146
`(1972) ................................................................... 10
`Moshe R. Gottlieb, American Anti-Nazi
`Resistance, 1933-1941: An Historical
`Analysis (1982) ...................................................... 9
`Moshe R. Gottlieb, The Anti-Nazi Boycott
`Movement in the United States: An
`Ideological and Sociological Appreciation,
`35 Jewish Soc. Stud. 198 (1973) ........................... 9
`Moshe R. Gottlieb, The First of April Boycott
`and the Reaction of the American Jewish
`Community, 57 Am. Jewish Hist. Q. 516
`(1968) ................................................................... 23
`
`
`
`
`
`vii
`Shirley Halperin, UTA Chief Jeremy Zimmer
`Implores Agents: ‘Please Support the
`Boycott of Kanye West’, Variety (Oct. 23,
`2022), https://perma.cc/T7UY-7QZW ................. 20
`Julie L. Holcomb, Moral Commerce: Quakers
`and the Transatlantic Boycott of the Slave
`Labor Economy (2016) .......................................... 7
`Paula E. Hyman, Immigrant Women and
`Consumer Protest: The New York City
`Kosher Meat Boycott of 1902, 70 Am.
`Jewish Hist. 91 (1980) ........................................ 16
`David Jackson, Obama Inspired by Anti-
`Apartheid Campaign, USA Today (Dec. 6,
`2013), https://perma.cc/5ZPH-UBGR ................. 13
`The Jew Must Battle Hitlerism Standing Up,
`Declares Golden, Jewish Daily Bulletin,
`July 13, 1934, at 7, https://perma.cc/WXV6-
`QZPZ.................................................................... 11
`Stephen Kaufman, Pressure to End Apartheid
`Began at Grass Roots in U.S., U.S. Mission
`to Int’l Orgs. in Geneva (Dec. 17, 2013),
`https://perma.cc/W2V2-GZKP ............................ 13
`Martin Luther King, Jr., Stride Toward
`Freedom: The Montgomery Story (1958) ............ 12
`Richard Knight, Sanctions, Disinvestment,
`and U.S. Corporations in South Africa, in
`Sanctioning Apartheid (Robert E. Edgar
`ed., 1990), https://perma.cc/WPB4-5KGU .......... 13
`The Jerusalem Declaration on Antisemitism,
`https://perma.cc/NUT9-2ZE4.............................. 22
`
`
`
`
`
`viii
`Jewish Groups Aiding NAACP, Jewish
`Telegraphic Agency, Oct. 8, 1976, at 4,
`https://perma.cc/FTH5-9XFS .............................. 18
`Justice Department Denies Aiding Nazis, N.Y.
`Times, June 2, 1934, at 9.................................... 11
`Lucius S. Landreth, A Hundred and Ten Years
`of the Constitution, 38 Am. L. Registry 417
`(1899) ..................................................................... 6
`The Letters of Richard Henry Lee Vol. 1: 1762-
`1778 (James Curtis Ballagh ed., 1911),
`https://perma.cc/B7WD-CAKS ............................. 6
`Major Synagogue, Church Groups Launch
`Drive to Aid NAACP Appeal, Jewish
`Telegraphic Agency, Oct. 14, 1976, at 2,
`https://perma.cc/4YB7-M6HU ............................ 17
`August Meier & Elliott Rudwick, The Boycott
`Movement Against Jim Crow Streetcars in
`the South, 1900-1906, 55 J. Am. Hist. 756
`(1969) ................................................................... 12
`Aryeh Neier, Defending My Enemy (1979) .............. 26
`Note, Boycotting a Boycott: A First
`Amendment Analysis of Nationwide Anti-
`Boycott Legislation, 70 Rutgers U.L. Rev.
`1301 (2018) ............................................................ 7
`Matthew C. Porterfield, State and Local
`Foreign Policy Initiatives and Free Speech:
`The First Amendment As an Instrument of
`Federalism, 35 Stan. J. Int’l L. 1 (1999) ............... 7
`
`
`
`
`
`ix
`Resolution of September 22, 1774, U.S.
`Continental Congress, Charles Thomson &
`Continental Congress Broadside
`Collection, Library of Congress,
`https://perma.cc/P3V2-WAJL ............................... 6
`Marc Saperstein, Martyrs, Merchants and
`Rabbis: Jewish Communal Conflict as
`Reflected in the Responsa on the Boycott of
`Ancona, 43 Jewish Soc. Stud. 215 (1981)........... 16
`Chris Simkins, US Anti-Apartheid Movement
`Helped Bring Change to South Africa, VOA
`News (Apr. 24, 2014, 4:39 p.m.),
`https://perma.cc/UA92-Q29F .............................. 14
`Andre L. Smith, Consumer Boycotts Versus
`Civil Litigation: A Rudimentary Efficiency
`Analysis, 43 How. L.J. 213 (2000) ...................... 14
`Glenn Curtis Smith, An Era of Non-
`Importation Associations, 1768-73, 20 Wm.
`& Mary Q. 84 (1940) ............................................. 5
`Chris Taylor, Boycott Nation: How Americans
`Are Boycotting Companies Now, Reuters
`(June 29, 2022), https://perma.cc/5QDW-
`DNYT .................................................................. 20
`Edward Raymond Turner, The First Abolition
`Society in the United States, 36 Pa. Mag.
`Hist. & Biography 92 (1912) ................................. 7
`U.S. Jews’ Connections with and Attitudes
`Toward Israel, Pew Research Center (May
`11, 2021), https://perma.cc/RPS5-JFVC ............. 23
`
`
`
`
`
`x
`UAHC Steps Up Anti-Apartheid Campaign,
`Jewish Telegraphic Agency, Oct. 15, 1986,
`https://perma.cc/QX2T-FX6V ............................. 17
`Samuel Untermyer, To Our Patriotic German-
`American Citizens, Jewish Daily Bulletin,
`May 15, 1934 ....................................................... 25
`Virginia Nonimportation Resolutions,
`Founders Online, National Archives,
`https://perma.cc/HY75-QCRN .............................. 5
`Albert Vorspan & David Saperstein, Tough
`Choices: Jewish Perspectives on Social
`Justice (1992) ...................................................... 26
`Votes and Proceedings, Oct. 20, 1774, U.S.
`Continental Congress, Peyton Randolph &
`Continental Congress Broadside
`Collection, Library of Congress,
`https://perma.cc/6UUH-HD44 .............................. 6
`John M. Wilson, Conflict of Conscience: A
`Cultural Boycott of South Africa is Forcing
`Entertainers to Make Hard—and
`Expensive—Moral Choices, L.A. Times,
`Feb. 24, 1985, at U1 ............................................ 14
`Stephen Samuel Wise, Challenging Years
`(1949) ................................................................... 10
`The Working Definition of Antisemitism,
`International Holocaust Remembrance
`Alliance, https://perma.cc/L6Q9-9FVP............... 22
`
`
`
`
`
`
`
`
`
`1
`INTEREST OF AMICI CURIAE
`Jewish tradition reflects a commitment to freedom
`of expression. Amici T’ruah: The Rabbinic Call for
`Human Rights, J Street, Americans for Peace Now
`(APN), and Partners for Progressive Israel represent
`large swaths of the American Jewish community who
`may personally
`oppose
`the global Boycott,
`Divestment, Sanctions (“BDS”) movement but who
`recognize the fundamental right to freedom of
`speech.1
`T’ruah brings together rabbis and cantors from all
`streams of Judaism, together with members of the
`Jewish community, to act on the Jewish imperative to
`respect and advance the human rights of all people.
`T’ruah represents more than 2,300 Jewish clergy
`across North America and thousands of Jewish lay
`people and activists. Grounded in Torah and Jewish
`historical experience and guided by the Universal
`Declaration of Human Rights, T’ruah calls upon Jews
`to assert Jewish values by raising their voices and
`taking concrete steps to protect and expand human
`rights in North America, Israel, and the occupied
`Palestinian territories. While T’ruah does not reject
`out of hand the strategic, targeted use of boycott and
`
`
`1 Counsel for amici curiae authored this brief in its entirety,
`and no party or its counsel, nor any other person or entity other
`than amici or their counsel, made a monetary contribution
`intended to fund its preparation or submission. All parties were
`timely notified of proposed amici’s intent to file this brief and
`consented to its filing.
`
`
`
`
`
`2
`divestment in justice campaigns, T’ruah does not
`affiliate with the BDS movement.
`J Street organizes and mobilizes pro-Israel, pro-
`peace Americans who want Israel to be secure,
`democratic, and the national home of the Jewish
`people. Working in American politics and the Jewish
`community, J Street advocates for policies that
`advance shared U.S. and Israeli interests as well as
`Jewish and democratic values, leading to a two-state
`solution to the Israeli–Palestinian conflict. Vibrant
`debate has characterized the Jewish tradition for
`millennia. The same openness should govern
`discourse about Israel today. J Street opposes the
`global BDS movement, and at the same time opposes
`penalizing those who exercise their right to engage in
`boycott activity.
`APN’s mission is to educate and advocate with
`U.S. policymakers, political leaders and the Jewish
`community around supporting and adopting policies
`that will lead to comprehensive, durable, Israeli–
`Palestinian and Israeli–Arab peace. APN is the sister
`organization of Shalom Achshav, Israel’s preeminent
`peace movement.
`Partners for Progressive Israel supports Israelis
`working to ensure civil rights, equality, social justice,
`and a durable and just peace between Israel and its
`neighbors.
`Amici believe that the Jewish community is
`strengthened by vigorous debate on issues that are
`vital to the wellbeing of Israel and the worldwide
`Jewish community. Free speech—including the right
`
`
`
`
`
`3
`to boycott and the right to speech with which we
`vehemently disagree—constitutes an
`essential
`component of democracy, a basic human right, and a
`fundamental value of Judaism. Jewish tradition
`teaches this in Talmud, where the rabbis frequently
`use colorful language to repudiate each other’s
`opinions, while leaving even rejected opinions in the
`text for later study. Those who believe that there is
`one acceptable view on Israel should not be allowed to
`impose constraints on what constitutes permitted
`speech in the Jewish community or the broader
`marketplace of ideas. Censorship of those who
`question American or Israeli policy puts the
`intellectual integrity and future of the Jewish
`community at risk and threatens to further calcify
`opinions about the Israeli–Palestinian conflict,
`making more remote the realization of a just and
`secure future for Israelis and Palestinians.
`
`SUMMARY OF ARGUMENT
`From the founding to the present, Americans have
`engaged in politically motivated boycotts. And for just
`as long, Americans have viewed their participation in
`these boycotts as expressive acts, part of their rights
`as Americans.
`Boycotts have been a powerful tool for historically
`marginalized
`groups,
`including
`the
`Jewish
`community, to protest against injustice. Thus, for
`example, when Adolf Hitler assumed power in
`Germany and began his campaign to exterminate the
`Jews, the American Jewish community organized a
`boycott of Nazi-made products. Anti-Nazi boycott
`leaders drew inspiration from the founding era and
`
`
`
`
`
`4
`invoked their constitutional rights as Americans.
`Boycotters across other eras similarly invoked their
`constitutional rights to protest slavery, apartheid,
`and racial injustice.
`With scant analysis of this Court’s precedents and
`no acknowledgment of this history, the court of
`appeals deemed boycotts beyond First Amendment
`protection. Under this view, the mass boycotts of Nazi
`Germany were matters of legislative grace rather
`than constitutional right. The boycotts of the civil
`rights movement would have been unprotected by the
`Constitution. Governments would be free to choose
`which political views they favor and which they do
`not.
`Carving out exceptions to the First Amendment’s
`protections imperils the Jewish community. Some
`Jews support the BDS movement, while others oppose
`it. The choices about which political movements to
`support are ones that should be subject to debate and
`persuasion, not government coercion. If it is allowed
`to stand, the court of appeals’ decision will weaken the
`First Amendment freedoms on which all Americans,
`including American Jews, depend. Thus, amici urge
`this Court to review and reverse the dangerous
`precedent set below.
`
`
`
`
`
`5
`ARGUMENT
`
`I. FROM THE AMERICAN REVOLUTION TO
`THE PRESENT, AMERICANS HAVE INVOKED
`THEIR RIGHT TO BOYCOTT TO EXPRESS
`DISAGREEMENT WITH
`GOVERNMENT
`POLICIES.
`
`A. The Boycott in Early America
`America was founded with a boycott. In the decade
`leading up to the Declaration of Independence,
`colonists used non-importation agreements to boycott
`British goods in a powerful expression of their anger
`at British taxation laws. Colonial leaders secured
`commitments from merchants and consumers not to
`import or purchase listed products from Britain.
`In Virginia, for example, signatories to the 1769
`Nonimportation Resolutions promised to boycott a
`long list of products from Britain “unless the
`[challenged] Acts of Parliament are repealed.”
`Virginia Nonimportation Resolutions (May 17, 1769),
`Founders
`Online,
`National
`Archives,
`https://perma.cc/HY75-QCRN. Inspired by similar
`agreements in the northern colonies, George Mason
`drafted and George Washington introduced the
`agreement, which many Virginia leaders, including
`Thomas Jefferson, signed.
`Nonimportation agreements spread throughout
`the colonies. See, e.g., Glenn Curtis Smith, An Era of
`Non-Importation Associations, 1768-73, 20 Wm. &
`Mary Q. 84, 93 (1940). Richard Henry Lee, another
`signatory to the Virginia resolutions, celebrated the
`effort: “The flame of liberty burns bright and clear ...
`
`
`
`
`
`6
`Americans, from one end of the Continent to the
`other, appear too wise, too brave, and much too
`honest, to be either talked, terrified, or bribed from
`the assertion of just, equitable, and long possessed
`rights.” Letter from Richard Henry Lee to Arthur Lee
`(May 19, 1769), in The Letters of Richard Henry Lee
`Vol. 1: 1762-1778, at 34 (James Curtis Ballagh ed.,
`1911), https://perma.cc/B7WD-CAKS.
`By the time the First Continental Congress met,
`boycotting British goods was a familiar mode of
`discourse. One of the Congress’s first acts was
`adopting a colony-wide boycott of various British
`goods. Resolution of September 22, 1774, U.S.
`Continental Congress, Charles Thomson &
`Continental Congress Broadside Collection, Library
`of Congress, https://perma.cc/P3V2-WAJL; Extracts
`from the Votes and Proceedings, Oct. 20, 1774, U.S.
`Continental Congress, Peyton Randolph &
`Continental Congress Broadside Collection, Library
`of Congress, https://perma.cc/6UUH-HD44.
`Thus, the founding generation understood the
`boycott as a political and expressive act. Indeed, this
`collective action to express political grievance helped
`forge a distinctive American political
`identity
`separate from that of individual colonies. See, e.g.,
`Lucius S. Landreth, A Hundred and Ten Years of the
`Constitution, 38 Am. L. Registry 417, 423 (1899). The
`boycott was a highly effective form of mass political
`mobilization, and a uniquely American one at that:
`“[T]he American Revolution was the first large-scale
`political movement in recorded history to organize
`itself around the relation of ordinary people to
`manufactured consumer goods.” T.H. Breen, The
`
`
`
`
`
`7
`Marketplace of Revolution: How Consumer Politics
`Shaped American Independence, at XVIII (2005).
`“The
`founding generation not only viewed
`nonimportation boycotts as legal, but also as the
`exercise of an ‘undeniable constitutional right’ under
`both English and colonial
`law.” Matthew C.
`Porterfield, State and Local Foreign Policy Initiatives
`and Free Speech: The First Amendment as an
`Instrument of Federalism, 35 Stan. J. Int’l L. 1, 30
`(1999) (citations omitted). “Those who founded our
`nation and ratified our Constitution believed their
`boycott activities against the British were lawful, and
`would be shocked by the notion that the Bill of Rights
`did not safeguard the type of assembly and petition
`for redress of grievances they had used themselves.”
`Note, Boycotting a Boycott: A First Amendment
`Analysis of Nationwide Anti-Boycott Legislation, 70
`Rutgers U.L. Rev. 1301, 1311 (2018).
`In the decades
`following the Constitution’s
`ratification, Americans again turned to the boycott to
`express their disapproval, this time of slavery. A
`prominent abolitionist, Benjamin Franklin had long
`spoken out in favor of purchasing products tied to paid
`labor rather than slavery. He became president of the
`nation’s first abolition society, which adopted a
`boycott of slave-made products at its 1797 convention.
`Julie L. Holcomb, Moral Commerce: Quakers and the
`Transatlantic Boycott of the Slave Labor Economy 65
`(2016); Edward Raymond Turner, The First Abolition
`Society in the United States, 36 Pa. Mag. Hist. &
`Biography 92, 95, 103-104 (1912). Abolitionists
`continued to organize abstention from products
`tainted by slavery as part of their protest against the
`
`
`
`
`
`8
`institution. See generally Carol Faulkner, The Root of
`the Evil: Free Produce and Radical Antislavery, 1820-
`1860, 27 J. Early Republic 377 (2007).
`Just as during the country’s founding, participants
`again understood their boycott as a political and
`expressive act. See Lawrence B. Glickman, Buying
`Power: A History of Consumer Activism in America 62
`(2009). And the boycott provided a mode of expression
`that was particularly empowering
`for
`those
`Americans, such as women, who were otherwise
`excluded from political power. Angelina Grimké of the
`Philadelphia Female Anti-Slavery Society argued
`that a woman must “do all that she can by her voice,
`and her pen, and her purse, and the influence of her
`example” to abolish slavery, a position ratified by the
`Anti-Slavery Convention of American Women. See Ira
`V. Brown, “Am I Not a Woman and a Sister?” The
`Anti-Slavery Convention of American Women, 1837-
`1839, 50 Pa. Hist.: J. Mid-Atl. Stud. 1, 5-6 (1983).
`These early boycotts established boycotting as an
`expressive and political act and set the tone for
`American protests in the generations that followed.
`
`B. Americans Boycott Nazi Germany
`One hundred years
`later, Americans drew
`inspiration from these precedents and launched a
`widespread boycott of Nazi Germany. Immediately
`after Hitler took power, American Jewish leaders
`urged Jews and non-Jews alike to boycott products
`from Nazi Germany. By 1939, sixty-five percent of
`Americans,
`across
`all
`faiths
`and
`political
`perspectives, had joined the anti-Nazi boycott. Moshe
`
`
`
`
`
`9
`R. Gottlieb, American Anti-Nazi Resistance, 1933-
`1941: An Historical Analysis 262 (1982) (hereinafter
`Gottlieb, Anti-Nazi Resistance).
`Anti-Nazi boycotters understood their action as
`connected to American history and the Constitution.
`As one leader of the anti-Nazi boycott declared, “The
`[boycott] movement is in the oldest American
`tradition.” Moshe R. Gottlieb, The Anti-Nazi Boycott
`Movement in the United States: An Ideological and
`Sociological Appreciation, 35 Jewish Soc. Stud. 198,
`221 (1973) (quoting American Jewish Congress
`Bulletin, Jan. 13, 1939, at 1). “Long before the word
`boycott was used, our forefathers made great
`sacrifices in enforcing a general embargo against
`trade with Great Britain.” Id. Although a formal,
`government-enforced embargo would have implicated
`politics
`and
`international
`relations,
`boycott
`organizers urged that critics “cannot effectively
`attack a private boycott, or deny the constitutional
`right of Americans to buy where and what they
`choose.” Gottlieb, Anti-Nazi Resistance, at 300 (citing
`Records of the Joint Boycott Council, Anti-Nazi Week
`folder (1938)).
`Leaders viewed the boycott as the most effective
`means for ordinary Americans to protest Nazi policy.2
`
`2 Nazi reactions suggest this was correct. Nazi propagandist
`Joseph Goebbels complained that the boycott forced the Nazi
`regime’s campaign against Jews to halt briefly, writing that the
`regime could “undertake[] nothing more against the Jews ...
`since further boycotts, foreign exchange difficulties and other
`troubles are thereby threatened.” Moshe Gottlieb, In the Shadow
`(cont’d)
`
`
`
`
`
`10
`Samuel Untermyer, a boycott leader, emphasized
`that the boycott extended to people from all faiths,
`who participated as part of “their right to full
`expression of grievances against Nazi Germany.”
`Boycott Fight to Finish, Wise Insists at Geneva,
`Jewish Daily Bulletin, Aug. 22, 1934, at 1,
`https://perma.cc/S3PV-E6R7. “The answer of liberal
`and humane America to the war of extermination now
`decreed by the madman[] now in control of Germany,
`will express itself in an intensification and extension
`of the boycott.” $500,000 Sought for Nazi Boycott,
`N.Y. Times, Sept. 11, 1933, at 8 (quoting Untermyer).
`Rabbi Stephen Wise wrote that the boycott “recorded
`civilization’s protest against Nazi Germany.” Stephen
`Samuel Wise, Challenging Years 261 (1949). Boycott
`Committee Chair Joseph Tenenbaum praised the “the
`moral expression of condemnation of Hitlerism, as
`exemplified in the boycott.” AJC Calls for Vigilantes
`Body to Aid Boycott, Jewish Daily Bulletin, June 22,
`1934, at 2, https://perma.cc/2EU2-NRSZ.
`Nazis, meanwhile, lamented the American right to
`boycott. Hitler found it “unbearable” that “it should
`be possible in some countries for some ideological
`reason or other to let loose a wild boycott of agitation
`against other countries and their goods.” Gottlieb,
`Shadow of War, at 161. And Nazi sympathizers in the
`United States argued unsuccessfully that the boycott
`
`
`of War: The American Anti-Nazi Boycott Movement in 1939–
`1941, 62 Am. Jewish Hist. Q. 146, 160 (1972) (hereinafter
`Gottlieb, Shadow of War) (quoting N.Y. Sun, Feb 28, 1935).
`
`
`
`
`
`11
`should be illegal. See Justice Department Denies
`Aiding Nazis, N.Y. Times, June 2, 1934, at 9.
`Instead, U.S. leaders praised the boycott as a way
`to renounce Hitlerism. Justice Brandeis wrote:
`“[Hitler’s] weakness because of the absence of a
`market [due to the boycott] is Jewry’s and the world’s
`hope.” Wise, supra, at 239-40 (quoting private letter).
`Former Deputy Attorney General and World War I
`General John V. Clinnin declared, “It is proper for all
`liberty loving humanitarians in all countries of the
`world to show resentment against Hitlerism.... Our
`only means of showing resentment is the boycott, an
`economic lesson to be brought home to the German
`government.” Boycott Only Weapon to Fight Nazi
`Intolerance, General Clinnin Declares, Jewish Daily
`Bulletin, Sept. 12, 1933, at 2, https://perma.cc/8M9C-
`Q52G; see also The Jew Must Battle Hitlerism
`Standing Up, Declares Golden, Jewish Daily Bulletin,
`July 13, 1934, at 7, https://perma.cc/WXV6-QZPZ
`(quoting Judge Isadore M. Golden, vice president of
`the Constitution B’nai B’rith Grand Lodge, stating in
`support of the boycott: “The cry of ‘hush-hush’ will
`never win Jewry’s battles. No people fighting for its
`rights can ever hope to succeed by soft pedaling.”).
`
`C. Civil Rights Boycotts
`Leaders from other minority groups also naturally
`turned to the American boycott tradition in their
`pursuit of justice, which led to some of the Nation’s
`most famous and effective boycotts to advance equal
`justice under the law.
`
`
`
`
`
`12
`1. Montgomery Bus Boycott
`Inspired by Rosa Parks’s stand against racial
`segregation, civil rights leaders including Rev. Martin
`Luther King, Jr., organized a boycott of the
`Montgomery, Alabama bus system in 1955.3 Upon
`hearing of Ms. Parks’s arrest, Rev. King “agreed at
`once that some protest was necessary, and that the
`boycott method would be an effective one.” Martin
`Luther King, Jr., Stride Toward Freedom: The
`Montgomery Story 32 (1958). King celebrated that the
`Constitution was on the side of the boycotters: “One
`of the great glories of democracy is the right to protest
`for right.” Id. at 50.
`For 13 months, Black residents refused to ride the
`bus, aiming not “to put the bus company out of
`business, but to put justice in business.” Id. at 39. The
`boycott ended when transit segregation did. Some
`boycotters also sued, which led to the overruling of
`Plessy v. Ferguson’s “separate but equal” doctrine.
`Gayle v. Browder, 352 U.S. 903 (1956), aff’ing 142 F.
`Supp. 707, 717 (M.D. Ala.). A few years later, this
`Court wrote that it was “doubtful ... that an organized
`refusal to ride on Montgomery’s buses in protest
`against a policy of racial segregation might, without
`more, in some circumstances violate a valid state
`
`
`3 Although this boycott is perhaps the most famous, it was
`not unique. Black southerners used boycotts to protest
`segregated public transportation for decades. See, e.g., August
`Meier & Elliott Rudwick, The Boycott Movement Against Jim
`Crow Streetcars in the South, 1900-1906, 55 J. Am. Hist. 756
`(1969).
`
`
`
`
`
`13
`law.” NAACP v. Alabama ex rel. Flowers, 377 U.S.
`288, 307 (1964).
`
`2. Divestment from South Africa
`Civil rights advocates did not limit their boycotts
`to protesting injustice in the United States. When
`South Africa entrenched
`its system of racial
`apartheid, advocates around the world began an
`organized boycott of the nation. See Cecelie Counts,
`Divestment Was Just One Weapon in Battle Against
`Apartheid, N.Y.
`Times,
`Jan.
`27,
`2013,
`https://perma.cc/PWK3-BE6Q.
`Americans again energetically exercised their
`right to boycott. About half of Americans supported
`boycotting South Africa. Donald R. Culverson, The
`Politics of the Anti-Apartheid Movement in the United
`States, 1969-1986, 111 Pol. Sci. Q. 127, 146 (1996).
`Student activists persuaded universities around the
`United States to divest from South Africa. Stephen
`Kaufman, Pressure to End Apartheid Began at Grass
`Roots in U.S., U.S. Mission to Int’l Orgs. in Geneva
`(Dec. 17, 2013), https://perma.cc/W2V2-GZKP.
`President Obama described
`joining
`the anti-
`apartheid move
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