Abstract
In response to an explosion in Environmental, Social, Governance (“ESG”), state lawmakers are enacting statutes to penalize companies that “boycott” industries they seek to protect. This Note first explains how we got here. To do so, it explains how lawmakers used statutes aimed at suppressing the Boycott, Divestment, and Sanctions (“BDS”) movement against Israel as templates for anti-ESG boycott laws. Further, this Note examines the rise of ESG and the subsequent anti-ESG movement that led to the enactment of state anti-ESG boycott laws pertaining to public contracts.
By analyzing the mixed outcomes of recent First Amendment challenges to anti-BDS laws and applying the Supreme Court’s free speech jurisprudence to ESG practices, this Note argues that stark differences between the BDS movement and the ESG framework render the ESG practices that anti-ESG boycott laws target largely unlikely to be treated as protected speech.
Nonetheless, this Note contends that ESG activities should constitute protected speech in the form of expressive conduct if the message that the actor intends to convey through them is overwhelmingly apparent. Turning to fundamental principles of the First Amendment, this Notes posits that both anti-BDS and anti-ESG boycott laws stifle self-governance and undermine public discourse on urgent matters of public concern. By applying a nuanced understanding of First Amendment rights in the context of evolving corporate practices, this Note ultimately provides a cautionary tale of anti-boycott legislation that is, at its core, anti-First Amendment.
Recommended Citation
Kali Venable, From Anti-BDS to Anti-ESG: The Next Generation of Boycotting the “Boycott” Is Only Slightly Less Problematic, 81 Wash. & Lee L. Rev. 1687 (2024).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol81/iss4/8
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