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Volokh Conspiracy

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.


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).