Abstract

America has a glorious and rightly venerated history of protests. Boycotts in particular can be effective for those without formal or realized political power. But some recent boycotts challenge the notion that the tactic is an unassailable tool of the righteous. Consider, for example, the open letter that 13 federal judges recently sent to the President of Columbia University stating that because of the unrest on that campus related to the pro-Palestinian encampment, they would not hire any undergraduate or law student, beginning with the class of 2024. And even before the Israel–Hamas War, some federal judges had conveyed that they refuse to hire anyone who participates in “cancel culture.”

The judges who signed the open letter to Columbia’s president referred to their stance as a “boycott.” Their refusals to hire, alongside those of other judges and firms, provide an occasion to assess the legal status of boycotts directed at current or potential employees on the basis of the employees’ political advocacy. The first part of this Article surveys the available statutes that might provide a cause of action for law students who were denied employment because of their political activism.

I then turn to the much loftier First Amendment issues that complicate this area of law. The Supreme Court has shown itself to be robustly solicitous of boycotts pursued on principled grounds, even when the boycotts target relative innocents and impose significant financial setbacks, and even though all boycotts proceed not by way of persuasion—a hallowed mode of speaking—but instead by the much tawdrier tool of coercion. Boycotts enjoy First Amendment protection notwithstanding their decidedly unmajestic tactics because they are themselves a form of political advocacy.

But therein lies the conundrum that the existing boycott cases have not had occasion to address: how should the First Amendment apply when a boycott (like that of any of the firms or judges), itself a form of political advocacy, aims to shut down others’ political advocacy (like that of the law students who stand to be spurned)? In other words, when it comes to boycotting law students, free speech values arise on each side. Appealing to a view of legal education that draws on progressive politics and critical legal studies, I argue that the conflict should be resolved in favor of the students.

Should the law then ban boycotts like the judges’ and firms’? I propose that the prohibition on employer boycotts should proceed by way of informal norms rather than legislation, and I describe the content and possible enforcement mechanisms for these norms. I conclude by identifying the implications of the arguments advanced here for other legal efforts to discipline boycotters and for some of the protest tactics that law students themselves have pursued. 

How to Cite