Wednesday, May 16, 2012

"Secondary" Consumer Boycotts: Breakdown of Civil Society or Pillar of First Amendment Values

Guest Blogger

Theresa J. Lee

Bradley Smith and Jonathan Adler both recently raised the hue and cry that secondary consumer boycotts are leading to the demise of civil society. As with boycotts, the political and the economic regularly overlap in our current political climate. And in many cases, that interaction is lauded as a vindication of the First Amendment.

In that vein, there is already a highly regulated area of law dealing with the interaction of the political and the economic: campaign finance. In Citizens United, the Court rejected the idea that resources from the economic marketplace should not be deployed in the political marketplace—a position Smith evidently supports. This latest argument against the use of the political consumer boycott wants to have it both ways—it would allow the economic to affect the political when corporations or wealthy individuals do so but bemoans the loss of civil society when consumers take action. While there are differences in the way each set of resources is deployed, these are inevitable ones that stem from the different economic power possessed by corporations versus the average consumer.

If corporations can use their market clout to influence the political process, it's only fair that consumers can too. Boycotts allow those whose main economic resource is their participation in the market as consumers to join with other like-minded consumers to influence the political marketplace. Although Smith notes that people “have a right not to do business with companies or individuals,” he becomes concerned at exactly the point that such decisions may have an impactwhen individuals aim to aggregate that right so their otherwise limited economic clout can impact the political marketplace.

Smith and Adler also miss the point when describing the consumer boycotts aimed at Rush Limbaugh’s advertisers or the funders of the American Legislative Exchange Council. Those boycotts are quite clearly aiming to affect corporate behavior. Attempting to import the concern for secondary boycotts from labor and antitrust law, Smith and Adler misunderstand the goal of these consumer boycotts. They try to distinguish between boycotting those who support a particular policy or idea and boycotting those who support those who support that policy. This line-drawing fails to recognize that the corporate spending is itself an exercise in support of a given policy or idea. Where and how corporations spend their money—money amassed from sales to consumers—is the essence of corporate behavior. Consumer boycotts recognize this fact and aim to influence that corporate spending. At a bare minimum, these consumers don’t want their money used to support something with which they disagree.

Smith notes that the call for boycotts from both sides of a debate can lead to a snowball effect with boycotts popping up on each side. This concern over a never-ending cycle of boycotts fails to recognize the fact that the boycott is a taxing exercise that relies upon countless "voluntary decisions by free citizens." The call for a boycott and an actual boycott are two very different acts. A successful boycott regularly requires its participants to bypass cheaper and easier options. Such a boycott takes a level of commitment and organization that is usually only displayed by those intensely committed to an idea. Where a larger, more diffuse group may oppose the very same idea, a core, committed group remains more likely to organize and act collectively and, thus, to have an impact. It is this very difference in intensity that some opponents of campaign finance limits have used to argue against contribution limitations. Presenting competing calls for boycotts from both sides of a debate as destructive turns a blind eye to the preferred remedy for speech one finds disagreeable: "more speech." The calls for additional boycotts are exactly this.

Smith presents boycotts as a slippery slope to employers making decisions based upon employee political positions. This concern is not well placed. At least three elements separate political boycotts from economic retaliation against employees. First, a boycott is expressly aimed at persuading the target to political or social action; political firings contain no such element of discussion. Furthermore, a political boycott inevitably ends. Either the boycotters' demands are met or they abandon their pursuit short of its goal, and the relationship between producer and consumer continues. A firing ends the relationship entirely. Second, The power differentials between an employer and employee or applicant are also vastly greater than those between consumers and a producer. A consumer has negligible power when compared to a boycott target while an employer has a near power monopoly. The third important difference rises out of this same power structure. Firings are unilateral. One individual makes one decision and carries it out. Boycotts are just the opposite. Boycotts demand constant decisions by a large number of people across a long period of time. In this way, boycotts demand continual thought and reevaluation in a way that a firing simply does not. Numerous state laws recognize the difference between employer retaliation and consumer political boycotts, prohibiting employer retaliation but not the constitutionally-protected consumer boycott.

We must recognize the consumer boycott for what it is—one of the only ways that ordinary citizens can use their economic clout to affect the political world. This is a critical avenue, as corporations constantly impact the political sphere with resources amassed in the economic. Our concern for civil society should first focus on the dramatic impact of corporations on our democracy before attempting to foreclose the best, perhaps only, tool consumers have to fight back in the same arena.

Theresa J. Lee is Associate Research Scholar in Law, San Francisco Affirmative Litigation Project Fellow, and Lecturer in Law at Yale Law School. You can reach her by e-mail at

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