A state passes a law requiring all state government contractors to certify that they do not participate in boycotts of any country that is an ally of the United States. A construction company, which has a policy of boycotting a particular allied country due to its human rights record, challenges the law. Which of the following is the most likely outcome?
- AThe law will be upheld as a valid exercise of the state's proprietary spending power.
- BThe law will be struck down as violating the Dormant Commerce Clause.
- CThe law will be upheld under the state's police power to ensure fair business practices.
- DThe law will be struck down as violating the First Amendment right to free speech.
Show answer & explanationAnswer & explanation
Correct answer: D. The law will be struck down as violating the First Amendment right to free speech.
Boycotts, particularly those motivated by political or social concerns, are generally considered a form of expressive conduct protected by the First Amendment. While the government has broad power as a 'market participant,' this power is not absolute and cannot be used to compel contractors to abandon their First Amendment rights. The Supreme Court has indicated that laws targeting boycotts based on viewpoint are subject to strict scrutiny and are unlikely to be upheld.
Why the other options are wrong
- A. While states have proprietary power, it doesn't give them carte blanche to infringe on fundamental rights like free speech. The 'market participant' exception typically applies to dormant Commerce Clause issues, not First Amendment rights.
- B. The Dormant Commerce Clause is less relevant here; the core issue is the state compelling speech/action related to political expression, not discriminatory economic regulation per se.
- C. The state's police power does not extend to compelling or restricting political expression in this manner, particularly when it targets specific viewpoints.
Expressive Conduct (Boycotts)
Boycotts, especially those undertaken for political, social, or economic reasons, are often considered a form of symbolic speech or expressive conduct protected by the First Amendment.
- Protected under *NAACP v. Claiborne Hardware Co.*
- Government cannot compel or prohibit such expression without meeting strict scrutiny
- Distinguish from purely commercial boycotts or illegal activity
- Market participant exception generally does not apply to First Amendment rights
Memory trick: Speech is free, even when contracting with thee.