Free Speech

No, Government Boycotts of Nike Aren't Constitutional

The government may not discriminate against businesses because of the political views the business (or its spokesman) has expressed.

|The Volokh Conspiracy |

GoLocalProv News reports that the town council of a Providence-area town "voted 3-2 in favor of a resolution Monday night requesting the town and school department refrain from purchasing Nike products, after Colin Kaepernick became the recent face of the company." But any such boycott by the town and the schools would violate the First Amendment, just as Denver Airport's refusing to rent space to Chick-fil-A because of its executives' anti-same-sex-marriage stand would have done the same. (Ultimately, the Chick-fil-A seems to have been approved.)

As the Supreme Court held, by a 7-2 vote, in Board of Comm'rs v. Umbehr (1996),"the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech." And while the Umbehr court focused only on termination of existing contracts, its reasoning rested on the analogy between government contracting and government employment—and when it comes to government emloyment, the Court has expressly held that politically based refusals to hire are generally as unconstitutional as politically based dismissals, see Rutan v. Republican Party (1990). As with government employees, the government likely can refuse to do business with contractors when doing business with them causes enough disruption (even when the disruption stems from public reaction to the contractors' speech); but there has to be a real showing of such disruption, and not just a few people being upset and demanding a boycott.

Now this applies only to retaliation based on a business's (or its employees' or contractors') First-Amendment-protected activity, such as speech or contributions to political causes. Refusing to deal with companies that engage in constitutionally unprotected—even if legal—conduct is generally allowed:

  • A government may, for instance, refuse to do business with employers that discriminate based on sexual orientation, even in jurisdictions where such discrimination is legal.
  • Likewise, a government may refuse to do business with banks that refuse to lend to gun manufacturers.

But here, it appears that the town council is acting entirely based on Nike's and Colin Kaepernick's speech, just as the Denver authorities appeared to be motivated entirely by Chick-fil-A's political activity (and not, say, any discrimination by Chick-fil-A against gay patrons; to my knowledge Chick-fil-A has never been accused of that.)

Thanks to reader Brian Bishop for the pointer to the GoLocalProv story.

UPDATE: A commenter suggests that deliberately not doing business with banks that refuse to lend to gun manufacturers might also violate the First Amendment, because the banks' refusals can send (and can be intended to send) a political message. But that's not enough to trigger the First Amendment here; most actions can send a political message, if only a message that the action is good and any laws or norms against it are bad. Certainly most forms of overt discrimination, whether based on the target's race, sexual orientation, or line of business, send a message.

The First Amendment is violated when the government discriminates against businesses (or others) because of the businesses' message, rather than because of what the businesses do. If government officials think that banks that deliberately refuse to lend to gun manufacturers are improperly interfering with citizens' rights, that's discrimination based on the banks' action, not based on the banks' speech (or on the expressive components of the banks' action). Likewise for a vast range of other decisions not to deal with businesses because of what the businesses do (regardless of the message that is sent by what the businesses do).

NEXT: A Florida Prosecutor Is Accused of Shoplifting From Publix

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A government may discriminate against banks which refuse to lend to gun manufacturers? Is not such a policy as much an expression of political opinion as Nike’s engagement of Kaepernick? Of course, reductio ad absurdam might render anything an expression of political opinion, as in Alito’s Janus opinion.

    1. Louisiana has refused to use Bank of America for some big contracts recently due to BoA’s imposition of corporate gun control. Article on this matter

      1. Louisiana has refused to use Bank of America for some big contracts recently due to BoA’s imposition of corporate gun control

        From a real news source.

        1. There must not be a real news source.

          1. That’s quite the Freudian slip there reg.

    2. Refusal of contracts to banks which refuse to lend to gun makers goes beyond speech into inflicting economic harm, the additional arm twisting of boycotts. While free people and companies have a right to refuse to deal with those who promote guns, government is under no constitutional restriction to have to support that harmful action against manufacturers.

      If anything, a government that refused to deal with banks that *did* loan to gun makers might be unconstitutional as gun rights are in the second amendment.

      1. Why would the existence of the 2A prevent governments from refusing to deal with banks that loaned to gun makers?

        1. For the same reason that the existence of the 1A prevents governments from refusing to deal with banks who loan money to newspapers.

        2. It might for the same reason. In both, government is going beyond speech into exacting economic harm on those who take advantage of their rights.

    3. Good comment. This is the real update:

      There are some matters of opinion which are OK even for constitutionally protected rights like 2A. So anti-gun is OK. Everyone and anyone can boycott pro-gun folks and the gun industry.

      Likewise being pro religious freedom, including the right to disagree with and not participate in the gay lifestyle, that is NOT OK! You are allowed to boycott those folks.

      Boycotting a guy who insults law enforcement and the flag well that is definitely OK

      We’re selective with our constitutional rights although we are NOT going to admit it!

      1. Liberals only care about the pelvic rights.

  2. “If government officials think” . . . . Can it be they get to decide?

  3. I don’t think the distinction between banks and this is as clear as you want it to be. How would it be different if the city just said “we won’t do business with any company that uses Kaepernick as a spokesperson”? I don’t see that as meaningfully distinguishable from “we won’t do business with any company that lends to gun manufacturers”

    1. You can’t just say “it’s the political message of Kaepernick”, because there’s a political message to boycotting (or counter boycotting) guns, too.

      1. Yes but the gun thing goes beyond a message into attempting actual economic harm. Government cannot violate speech rights but are under no constitutional obligation to aid boycotts for economic harm, even if legal.

    2. I agree. Nike’s action is not to speak itself, but to hire Mr K to sell its products. There’s no particular reason to believe that Nike hired him because they agree or disagreee with his extracurricular politicking, and every reason to believe that they hired him because they want their products to appeal to folk who like his politicking.

      In any event, their action is an orrdinary business action to hire someone to sell their stuff. If there’s an expressive element in their business action, it’s strictly incidental. So I don’t really see the distinction between Nike and the banks.

      If the government were refusing to do business with Mr K because of what he says, that would be different.

      1. In this case the decision to hire Mr K was not only because of what he says, but they actually built an ad campaign around boosting a version of that message.

        I don’t see how you can argue there’s no expressive element.

    3. IIRC from my 1A course, courts often have to make the expression/action distinction in First Amendment analysis. They might not always be right, but this isn’t an area they shy away from.

  4. I’m starting to come around to the leftist view that corporations aren’t people and don’t have constitutional rights. Let’s just let the Trump administration decide what corporations are and aren’t allowed to say.

  5. “the Court has expressly held that politically based refusals to hire are generally as unconstitutional as politically based dismissals”

    Classic example of the bad “living constitution”.

    Party affiliation controlled all hiring and firing until Civil Service came around. If the Court was correct as to 1A, there would have been no need for the Civil Service act.

    The courts just made up something. Again.

    1. This is one of the reasons Janus was decided incorrectly.

    2. You’re skipping over the possibility that the people who passed the Alien & Sedition Acts might have done other unconstitutional things as well…

  6. Just hypothetically speaking, a government could say that they refuse to do business with Nike because they exploit their foreign workers, though, right? That’s based on what they do, not what they say.

    1. No that wouldn’t work. It’s only lawful to use pretexts to support progressive causes like affimative action. It’s not constitutional to use them for reactionary causes.

      1. Not everything you find dumb is a pretext.

        And I’m also not sure whether RAJones’ suggested pretense would be thrown out, what with how down the Court is on animus analysis.

      2. You may want to stay away from that one. The last time pretexts came up is when the Supreme Court approved of Trump banning travel from a whole bunch of countries for national security reasons that just coincidentally happened to all be full of Muslims.

  7. I can accept the unconstitutionality of showboating gestures like these anti-Nike and Chick-fil-A measures, but I dread opening the door to second guessing any governmental decision — “You denied me a government contract because of my politics!” “No, we denied it for this laundry list of other reasons, which we’ve had to compile and document at great expense”.

    1. This is also asymmetrical warfare, politically. Since the permanent governmet apparat is Democrat, the apparat can make all sorts of decisions to boycott bad right wing businesses without bothering to write down the damning reasons. But when Republican politicians get elected to command the permananent apparat, they actually have to issue written orders to try to impose their nefarious boycotts, which are then vulnerable to exposure and reversal.

      So it’s virtually impossible to nail the apparat on bias (see Lois Lerner) but really easy to nail the GOP.

      The most valuable swamp draining legislation would be to switch all federal employees to “at will”. Under current rules, Hell will freeze over before than happens. But when the Dems abolish the legislative filbuster, we’re good to go.

      1. What with all the sekret Deep State Democrats, it’s a wonder conservativism has managed to survive! Almost as though they’re acting like professionals and not the craven partisans you imagine. Probably just to lull you out of your healthy paranoia though.

        1. Also, what’s the point of private retaliation against bad speech since it’s very secrecy won’t chill anyone?

          1. Sorry, I’m unable to connect your comment with anything in this thread.

          2. There is specific deterrence and general deterrence. Crushing this one particular opponent makes future acts easier.

        2. As I say, it’s asymmetrical warfare, like sword v trident. The Dems have some advantages – eg control of the permanent bureaucracy, schools, academia, media. And the Rs have certain advantages – eg a belief in arithmetic.

          1. Arithmetic, fairy tales, and bigotry — good luck with your reliance on that trinity, Lee.

      2. EYE ROLLING INTENSIFIES

  8. I miss the distinction of this purchasing decision and the almost completely political purchasing decision concerning public school textbooks, or selecting which books/videos to purchase for a public library.
    Who decides what is a boycott and what is a purchasing decision? Is it based on the politics being conservative or liberal?

    1. see my reply to McMuffin above. When the decision is made by the permanent bureaucracy it’s 99% safe from challenge. When it’s made by a politician in opposition to the policy of the permanent bureaucracy, there’ll have to be paperwork, and it can be challenged.

      Take the Census question on citizenship. The GOP can impose the question only by a political appointee insisting on it over the protests of the bureaucracy. But when the Dems get in again, it can (and will) be removed by the bureaucrats, without a Dem political appointee having to touch it. Won’t even make the news.If you’re a Dem politico and you want your political enemies colonoscopied by the IRS or a regulatory authority you don’t need to do anything. The bureaucrats simply read in the NYT or WP that AlabamaWidgets Corp is a GOP donor and the audits will start immediately. But if you’re a GOP politico and you want Soros audited, fuggedaboutit. You have to send a memo to some IRS person demanding it, and then your demand will be in the NYT tomorrow morning.

  9. So if a bank refusing to deal with a gun retailer or manufacturer is protected behavior, what about the banks and credit card companies that refuse to deal with Cody Wilson’s Defense Distributed?

    DD is being punished for their First Amendment protected publications, it seems – isn’t that unconstitutional under these rules?

    1. Irrelevant. The First Amendment constrains government behavior, not that of non-government entities. If a bank or credit card company decides on its own ? with no pressure from the government ? to deny service, them’s the breaks.

      1. The companies *are* being pressured by the government – the DoJ had several programs designed to harass banks and payment processors that worked with “undesirable” businesses.

        Under Obama, it was guns. Under Trump, it’s marijuana. In New York, it’s anything conservative.

        1. Then help keep up the good fight everywhere.

    2. Toranth must have missed the memo on right-wingers no longer talking about Cody Wilson. Gun nuts have it tough enough in modern society without having to discuss why their 30-something hero was caught trolling for underage girls on a pay-for-play site. It appears sovereign citizen patriot Cody Wilson has abandoned the United States in search of a jurisdiction more hospitable to disaffected, anti-social, gun-loving, right-wing incel he-men.

      Should we should expect to hear as much from Josh Blackman about Mr. Wilson as we have heard from Prof. Volokh on Judge Kozinski and Judge Kavanaugh?

  10. I thought government being its own speaker (which a boycott would seem to fall under) was provided much more protection than government telling others what they can or cannot or must or must not say. How is that protection for the government as speaker squared with the restrictions discussed here?

    Note I could well see protection against government changing policy in the middle of a contract but that is very different from choosing not to purchase a given product on a future basis.

    1. I agree with this.
      Wasn’t there a case about what gets out on license plates that included a “govt as speaker”?
      Govt as business partner would seem to be even further in favor of government doing what it wants.

      1. That was the voracious government renting out a little spot on license plates for an emblem, like they rent ad space on the side of a bus. While the SC ruled the bus space was a free speech zone w.r.t. them not being able to restrict messages, they conjured up the argument this wasn’t the case with license plates — that was government choosing what to say (laughably what people paid them to say), and so they could restrict confederate flags.

        It was properly mocked, with Scalia pointing out how great it was that the State of Texas was full throatedly speaking in favor of the football teams from out of state schools.

        Also, I doubt the left will be so happy when a conservative state allows choose life emblems but disallows pro choice ones. But you know, situational ethics of the nanosecond apply.

  11. The government can’t boycott a private business if politics is the sole motivation.

    1. tell that to California

      1. I see I need to telegraph my jokes better.

  12. The government bans Nike not because of what they say but because they pay Kaepernick to kneel. Problem solved.

    1. Skipping past the fact that, no, that’s not what Nike is doing: Euh, you do realise that the kneeling is the speech we’ve been talking about this whole time right? So your comment still reduces to “because they pay Kaepernick to say things the government doesn’t like”.

      1. North Carolina telling cities they can’t force businesses to install transgender bathrooms and people trying to talk others out of being gay is just as much expression or facilitating expression as the above yet I don’t see you weeping that california officially bans and discriminates against such behavior.

  13. Eugene, I find your arguments here uncharacteristically difficult to follow.

    I have some doubt that Nike’s hiring of Kapernick should be taken seriously as essentially expressive activity. While Nike is clearly taking sides in the aspect of the culture war, can we discern with any confidence Nike’s corporate position on, say, Section 1983 liability? Nike isn’t taking out ads calling for investigation of police brutality; they are hiring a pitchman who inspires deep feelings. Feelings that Nike has calculated will be reflected among its target customers.

    You write that it would ok for governments to refuse to deal with companies that (lawfully) discriminated against gays. Let’s push this a bit. May the government refuse to deal with a company that hires prominent anti-gay activist for its commercial advertising? I honestly can’t tell that your answer would be, based on this analysis, and I don’t think both of your observations can be correct. Sure, the anti-gay discrimination is action, but I’ll bet that a lot of the time it would have a genuine expressive component. I could be wrong, however. Maybe the company is just like Nike, and only does this to placate its expected customers. Shouldn’t we try to find out before settling the constitutional question?

    1. Its nuanced and selective. And surprising from Eugene.

    2. I’m not sure why this is difficult. The government can not only refuse to deal with companies that lawfully discriminate against gays, it can, and has, outright ban them from discriminate against gays. But can it ban companies from hiring anti-gay activists? I certainly hope that that is not a difficult question. And the same principles apply to lesser forms of coercion.

  14. Can anyone out there explain to me why my taxes are going to Nike or any other corporation?

    1. In general: because we like free markets and therefore like it when private businesses compete to provide the government with goods or services:

      In Nike’s case: because otherwise the school children would have to sew their own sports uniforms.

      1. “school children would have to sew their own sports uniforms”

        In a lot of countries students pay for their own school uniforms. There’s no reason that we couldn’t do the same just for sports.

        1. Sure, but what’s the difference (in practical terms) between the school buying a bunch of Nike clothes and the school requiring the kids to buy those very same clothes? Or did you imagine letting the children decide for themselves which uniform they wanted to buy?

    2. The military uses a lot of sports training equipment and clothing

    3. The U.S. government is the largest single purchaser of goods and services in the world, awarding approximately $500 billion in contracts every year.

  15. Presumably all that matters is that speech content I’d targeted at the end of the chain. So the gov could discriminate against banks that lend to gun manufactured but not against banks which lend to organizations that advocate for gun rights.

    1. I think both those actions should be none of the government’s business.

      I think it’s reasonable to wonder if the government can choose to not to contract with a business that strong-arms other businesses into failure based on the politics of the original business. But that isn’t addressed by your comment.

      1. Also, gun making is protected by the second amendment, and is required to keep and bear. Government actively harming gun makers implicates that freedom just as assuredly as actively harming companies that support speech the government doesn’t like implicates the first.

  16. There is no boycott. It is an unenforceable request.

    1. It is unconstitutional for the town or school system to abide by what the council requested. Hence, why Volokh states “But any such boycott by the town and the schools would violate the First Amendment”.

      Reading isn’t that hard. You’ve just gotta try a little bit. At least the first paragraph, maybe?

  17. “If government officials think…”

    Objection! Assumes facts not in evidence. 🙂

  18. Boycotts of this kind by local governments (or worse, refusals to allow a targeted company to open a store in the local government’s jurisdiction for political reasons) are quite common. So the follow-up question has to be, what remedies are available? And in particular, who has standing and what proof do they need?

    For example, it has been well known in Berkeley, CA for 30+ years that the city council will not permit Carls Jr. to open a restaurant anywhere within the city limits, because of its founder’s support for the pro-life cause.

    1. I think that’s OK based on being selective about when we protect 1A. Based on the updated article 2A does not need respected at all. Kaepernick and Nike nope unconstitutional can’t boycott. Carl’s yep its OK. because pro-life and God forbid being Christian is hate speech? Who knows but no protection for them.

      See if you get a reply from Eugene.

  19. Doesn’t CA have a policy of not doing business with states that have religious freedom (1A protected) laws?

    Is that unconstitutional? Let me guess we’re being selective here aren’t we?

  20. I am impressed with the number of people who do not seem to heave read the OP and instead just post short comments about how our jurisprudence is inconsistent and hates conservative stuff.

    This era has managed to switch the main GOP mindset from ‘illegals are the cause of all problems to ‘Forever victims of this bad faith world.’

    1. Yeah, Sarcastro, I’m sorry you have to be a victim of conservative bad faith.

      1. I never said they didn’t believe it.

        Which does not make it better.

  21. “But that’s not enough to trigger the First Amendment here; most actions can send a political message”

    I’m not sure I buy it… in the bank case, sending a message is the government’s goal. It’s not merely incidental to a larger policy.

    1. poor choice of words…sending a message in the maffia sense. That is, punnish people for holding unpopular opinions and doing unpopular things.

  22. This is an incorrect interpretation of the case law. The school instruction to not purchase Nike is not at all the same as the examples give.

    Advertising is speech _with the explicit purpose of modifying purchasing decisions_. Obviously a corporation wants purchases to increase, but it’s completely possible consumers could react negatively to an ad and buy less.

    So is it the law that advertising/marketing can ONLY get a positive reception from government entities that are consumers?

Please to post comments

Comments are closed.