Free Speech

Government Boycotts Based on Companies' (and Their Employees') Speech

More on their unconstitutionality.

|The Volokh Conspiracy |

Prof. Adam Scales writes, in response to my argument about why the First Amendment bars governments from discriminating against Nike based on Nike's having Colin Kaepernick as a spokesman:

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.] Hiring a spokesman is hiring someone to speak for you, to appear in your print and video ads. That is the exercise of Nike's First Amendment rights, much as any film director's decision to hire a particular actor is the exercise of his First Amendment rights. You could, if you want to, label it the exercise of expressive association rights as well as free speech rights; but since expressive association rights are an aspect of your free speech rights, the analysis is the same. (Nike's videos are commercial speech, but that doesn't matter here.) I do think that hiring Colin Kaepernick as a spokesman sends a particular ideological message; but in any event, it is indubitably First-Amendment-protected activity.

[2.] But my argument goes beyond that, because I think the government generally can't discriminate against companies based on the politics of their employees (or, more broadly, their employees' exercise of any constitutional rights), whatever role the employee has.

Say, for instance, that California said, "we refuse to do business with companies whose CEOs are Republicans," or "whose CEOs own guns," or "whose CEOs have had abortions." Even if that doesn't violate the business's First Amendment rights (because the business isn't speaking through its CEO), it violates the CEOs' rights—it targets them for governmental retaliation, though pressuring their employers to fire (or not hire) them. Board of Comm'rs v. Umbehr (1996) made clear that the government generally can't terminate a contract with a sole proprietor (there, a trash hauler) based on the person's speech; the government can't be able to terminate a contract with a corporation based on its CEO's speech or any other employee's speech. (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).)

Certainly if the government refused to deal with a company because some of its employees were black or women or Catholics, it would be clear that the government is violating the Equal Protection Clause; the same applies to the other rights—just imagine the power the government would have to suppress speech, or other constitutional rights, if it could threaten to retaliate against people's employers this way. Indirectly suppressing the speech by threatening the employers is just as unconstitutional as doing it by threatening the employees; constitutional protections apply whenever "government officials, through exercise of their regulatory authority over an employer, demand the discharge of an employee," and Umbehr tells us that constitutional principles apply when the government acts through exercise of its contracting authority and not just its regulatory authority.

[3.] Of course the same is true whether the government is discriminating against employees who hire people who are seen as anti-police, anti-gay, anti-Muslim, anti-American, or pro-police, pro-gay, pro-Muslim, or pro-American. The government can refuse to do business with companies that discriminate based on race, sex, sexual orientation, and the like. (Title VI of the Civil Rights Act is a classic example of such a law.) It could even refuse to do business with companies that refuse to serve police officers, or with companies whose employees discriminate in various constitutionally unprotected ways even off the job. But that's precisely because a private company's act or its employees' acts of discriminating is not protected by the First Amendment in most circumstances. A company's and its employees' speech are protected by the First Amendment.

[4.] Finally, as I noted in the update to the original post, the First Amendment doesn't provide this protection whenever someone's actions "have a genuine expressive component." Most conduct has some expressive component, if only to express the actor's support for such conduct. Most discrimination has some expressive component. But the government may refuse to do business with people or companies based on their or their employees' conduct, when it does so for reasons unrelated to that expression—for instance, because it doesn't want government funds to indirectly flow to constitutionally unprotected discrimination.

Here, though, it's clear that a government actor is contemplating discriminating against Nike because of either Nike's or Kaepernick's expression (or both). That's why the First Amendment protection kicks in.

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  1. Hmm, so can the government refuse to do business with companies that hire Communists? Not under Prof. Volokh’s analysis, because that burdens the First Amendment rights of Communists. What about companies that refuse to hire Communists? That would seem to burden the First Amendment rights of the business owners. But that creates an odd dynamic, where the government can tell businesses whom they must hire, but cannot tell them whom they must not hire.

  2. Political affiliation is not a protected class like sex, age, race, etc. so 1A (and EEO) doesn’t kick in.

    Companies can refuse to hire Communists if they want to (1A, etc, only applies to the govt, not private entities).

    1. Political affiliation is a protected class in some states.

    2. Political affiliation is a protected class for First Amendment purposes — the government can’t refuse to hire Republicans, see, e.g., Rutan v. Republican Part (1990), and can’t refuse to do business with companies that hire Republicans (or Communists or Libertarians or whoever else).

      1. That’s one of the reasons I read VC–free education!

        Thanks.

  3. But, suppose a company has a policy of hiring only people who, for instance, think homosexuality is an abomination. Can they really just say, “It isn’t our fault that every ‘gay’ who has applied here has failed the “thinks homosexuality is an abomination” test. We don’t discriminate on the basis of sexual orientation, just one’s opinions about it.”

    1. That’s the kind of policy that will be applied one way. A company will be allowed to not hire someone who thinks homosexuality is an abomination, even though it’ll have a disparate impact on religious people, while a company won’t be allowed to do what you state

  4. The analysis seems to lose sight of why protections exist at all — to prevent those in power from abusing their power to harm their opponents. The standard “they get to hurt you if it isn’t protected” seems the wrong one.

    The difference is seen in the idea presented that government could refuse to deal with a company who had an employee who did something off-duty what was not constitutionally protected but legal. Assuming for the moment that only enumerated rights matter, is this something we’ve granted government the power to do? That it can punish behaviors it doesn’t like but are legal?

    Isn’t restricting government’s power to punish to just prosecutions AKA lawbreaking something The People demanded on principle?

    Trump no more gets to withhold money to cities for unrelated, unapproved (by Congress) reasons than he, or those cities, do to withhold contracts from companies whose legal activities (or the off duty activities of mere employees) bother someone in power who wants to hurt them.

    1. That’s not the way the things operate. For instance, when I worked for New York State, the State required all contractors to certify that their operations in Northern Ireland complied with the McBride Principles (put another way, the State punished those whose operations did not comply with the McBride Principles), even though those principles are not the law, and have nothing to do with most state contracts (for building bridges, or operating food kitchens, or whatever). I never heard anyone suggest that requiring compliance with the McBride Principles was beyond the power of New York State.

    2. “The standard “they get to hurt you if it isn’t protected” seems the wrong one.”

      Isn’t that what “protected” means?

      “Assuming for the moment that only enumerated rights matter, is this something we’ve granted government the power to do? That it can punish behaviors it doesn’t like but are legal?”

      Why wouldn’t it be? If the government has the power to ban certain behavior, generally it would have the power to discourage the behavior in other ways, such as taxing it or asking that you refrain from the behavior if you wish to do business with the government?

  5. This does not seem correct — government discriminates in every decision it makes. Doesn’t the government speech doctrine permit this type of decision? the government can’t stop others from purchasing, but it surely can make purchasing decisions, even if they are based on viewpoint. As long as the decision is not based on a protected category, I don’t see how a boycott would be a problem. Surely the government boycotts companies that sell Nazi memorabilia or satanic memorabilia based on viewpoint. How is this any different?

    1. No, the government can’t boycott companies that sell Nazi or Satanic memorabilia — just like the government can’t boycott companies that express pro- or anti-gun-rights views or pro- or anti-abortion views, or that support Republicans or Democrats.

      1. How does this work with the government speech doctrine? if the government can promote it’s favored message (nazis are bad) and money is speech, isn’t the government merely choosing not to “speak” with the Nazi memorabilia dealer?

        For what it’s worth, I think the Court got it wrong in Umbehr but I also wonder if Citizens United undercuts that opinion. There does seem to be a distinction between hiring an employee vs. engaging in a transaction with a third party over a good or service.

        Plus this seems unenforceable given it would potentially allow the challenge to every purchase made.

        1. Ramer:

          Don’t know if it will be consider violating the terms of service but as per usual i have more to say than the comment engine allows so i’ll break it up. And i tred to append a couple links but there is a bar on words over 50 characters. is this really a libertarian blog? this is worse than facebook, no bold or italics, no links. well it is Reason’s forum but I wonder if it invites the reason with restriction.

        2. Given the plethora of municipal instruction against doing business with various concerns because of Northern Ireland, South Africa, Gun manufacture, perceived slights to minority populations, support for israel, etc. the flat announcement of this all being wrong in consequence of Umbehr makes one wonder how this hasn’t come up before with respect to these municipal foreign policies and regulations of interstate commerce. Many have thought them to overstep the bounds of rational operation of local governance, but I have not heard the first amendment raised against them, although it was quickly brandished by the ACLU, in this RI instance that I forwarded to Eugene.

          When Cambridge proposed to boycott Hewlett Packard because it did business with the Israeli government and military, the pushback was not based on the first amendment, but convincing the council that there were anti-semitic elements amongst those organizing the effort . In other words, it was public policy based on viewpoints either way – perhaps needlessly dragging localities into issues that have little impact on their operation.

        3. But municipalities have had a penchant for becoming a vessel of expression of the local id as construed by elected officials having varying relation to the actual operation of municipal services. I have generally believed that the answer to this is to be found at the ballot box. (that was also my view of Kitzmiller which I thought it unnecessary to make a federal case of, and don’t accept the notion that the school board adding an element of Intelligent Design to the curriculum amounted to an establishment of religion.)

          I don’t support the action of North Smithfield in resolving against doing business with Nike because of Kapernick but I don’t think it violates the 1st amendment. Niether in isolation or potentially additively does it truly command adherence to a government enforced outlook anymore than Kitzmiller amounted to an establishment. Sure the government has incentivized an outlook. It does counsel companies against marketing their products with spokesmen seen as disrespectful of societal institutions by these elected officials. But, members of the Nike board and employees remain free to express their concern that cops don’t treat blacks equitably. (also a proposition I don’t support but a view that town councils and citizens are equally free to hold).

        4. Eugene focuses on the conduct/speech distinction in distinguishing various state or municipal boycotts of stock in gun manufacturers. Indeed, it was this distinction that saved the Solomon Amendment prohibiting various subsides to colleges that did not permit military recruiters on campus in the FAIR case. But Eugen fails to explain why the marketing of products is expression and not conduct. That is certainly what it seems to me even though it has implied expressive content. Indeed that is just the argument that the colleges made against the Solomon amendment, that being forced in their conduct to allow military recruiters on campus was tantamount in the view of their community to an expression of support for the “dont’ ask don’t tell” policy — even though they were independently able to speak against that policy without restriction or effect on their government subsides.

          I’m not so sure that Umbehr was wrong but the question is how far does it truly extend. The effect of Umbehr was to apply the Pickering test to the circumstances of contracting as well as employment. The relevant inquiry is, in my mind, embodied in the following three excerpts from Pickering (where the first amendment required reinstatement of a school employee terminated for expressing views contrary to the school board on proper allocation of funding for education in the community):

          1. “The problem . . . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
            Pickering @ 569

            “What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Pickering @ 572-573

            “. . . in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.” Pickering @ 574

        5. At first blush, one might say, if Umbehr is right then Pickering favors invalidating the town resolution. What does the Colin Kapernick ad have to do with town administration and decisions to purchase Nike products or their servicability for their intended use?

          But one ought not to ignore Brennan directly crediting local authority’s interests in the kinds of values implicated when he wrote in Island Trees Union Sch. Dis. v Pico:
          “We are therefore in full agreement with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” ”

          before you jump on the notion that this North Smithfield resolution was not limited to schools (although that is one of the obvious places it could have an impact ) and secondarily that this did not impact curriculum, the second clause is independent of both the curriculum and school setting and absolutely implicates “community interest in promoting respect for authority and traditional values” which is absolutely the purpose of the North Smithfield Town Council – whether one agrees that such authority and traditional values are under assault by Nike or Colin Kapernick since we weren’t elected to guard those values.

        6. Union Trees lost the case, so the interest is not absolute and was limited by the first amendment, but that case involved controversial books that were by nature directly expressive. One might cast the adventure as commercial in that libraries refusing to stock the controversial books were engaged in a commercial boycott (although the court took pains to distinguish between removing the books and stocking them in the first place so its not really clear but I was arguably an after the fact boycott. But the potential commercial effect was much less implicated than the direct impact on a non-commercial citizen audience of junior high school and high school students who would be unable to borrow the books if they were not there.

        7. Final citation to interesting but unsatisfying decision in NEA v Finley, well and ribaldly remarked on by Scalia in concurring in judgment: “”The operation was a success, but the patient died.” this decision was the also the subject of supremely entertaining discourse by Walter Dellinger at a Federalist Society panel on culture and the law who hewed mildly closer to the Scalia rant than one might expect (sadly due to the bar on long words like urls can’t give you the links to audio or written versions of this).

          Finley is yet another decision that recognizes, if somewhat impotently in the view of Scalia and Thomas who joined him, that government discrimination is at the root of various undertakings and requirements to take into account decency that withstand constitutional challenge. As Dellinger put it: ” The one thing I knew was that we could not say, “It is okay to prefer Karen Finley to Norman Rockwell, but not vice versa . . .” Surely on individual circumstances this was a refusal to contract after a manner based on expression, and plaintiff Finley was amongst several so denied, perhaps strategically to create the case, although it was litigated as a facial and not as applied challenge and the majority opinion has various mitigations in it that some would argue are not here present – although perhaps an ordinance proposing that town not do business with any company that unreasonably disparages municipal law enforcement institutions would be more analogous.

        8. In sum, if such were possible in this loggerheic recitation, its not flippant but very reasonable to be concerned about government enforced viewpoints as a gateway to government employment and contracts as impinging the first amendment Barnette style. But I don’t see such widespread and rigid enforcement emerging from the small parades of horribles of such cases which are really for the ballot box as the most appropriate place to settle these matters while respecting the right of citizens or companies to speak on such matters – which I don’t believe is what is being infringed here.

          I’m open to the notion that the distinction between commercial speech and conduct and the kind of free speech we would zealously defend and see as attacked by such government policy is poorly drawn and invites government censorship under the rubric of attacking conduct and not speech independent of commercial conduct. But, the irony is that it is those on the left upset by this lack of embrace for Kapernick ( I have relatively little problem with Kapernick, albeit the socks were in poor taste) are the speech police when it comes to commerical speech as in the their unrelenting pushback against Citizen’s United.

          Thanks Eugene for taking up this interesting topic. I don’t anticipate being able to engage you at such length on this until that beer in November.

          Brian

          1. Very insightful. My take is that this is something better addressed by the political process and by anti-corruptions/bidding laws. I would also analogize it to First Amendment claims by one elected council member against the majority — those claims are generally rejected on the grounds that “it’s politics.” While the Supreme Court to my knowledge has not resolved that issue, I cannot distinguish a municipality’s decision to boycott Nike from for example voting to become a sanctuary city — in both situations the council’s political expression grossly outweighs the impact on others; and in both cases the same impact could be achieved without the political statement to have the same impact but would mean something very different. This I think shows that both are acts of government speech. But I look at the book banning v. book buying cases because that does seem to capture a meaningful distinction despite very little meaningful impact.

            1. sorry it was so longwinded but appreciate that you, or your comment made it to the bottom. Interesting point about political question doctrine. It seems to me I’ve seen less willingness for this to descend to the state and municipal level and federalism generally is less respected as a species of the separation of powers) than the federal tripartite structure preserved by that doctrine.

              Brennan writing in one of the cases perhaps overprotecting free association rights of public employees, Elrod v Burns says: “The short answer to this argument is that the separation-of-powers principle . . . has no applicability to the federal judiciary’s relationship to the States.” I guess he never read federalist 51 on madison’s dual security.

              And he dismissed the relevance of the political question doctrine in this case of unprotected patronage hires who normally changed with a change in the party of the sheriff of illinois counties. If that sounds like the federal plum book to you, one wonders why the courts are so solicitous of various political processes at the federal level, but not at the state (e.g., the one man one vote cases invalidating bicamerical legislatures with senates alloted by municipality rather than population).

              The whole point is that North Smithfield’s reversal on the boycott a couple days ago demonstrated this was a political question. If folks don’t want this expression on their behalf they can elect someone else.

  6. constitutionally unprotected discrimination

    who the hell got to Eugene?

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