New Article: Silverman, Free Speech Implications of US Anti-Boycott Regulations

Silverman, Matthew E. “The Free Speech Implications of US Anti-Boycott Regulations.” International Trade and Business Law Review 18 (2015): 1-30.

 
URL: http://heinonline.org/HOL/LandingPage?handle=hein.journals/itbla18&div=4

 
Abstract

This article provides an analysis of s 2407(a)(1)(D) of the Export Administration Act and its implications on Americans’ free speech rights. Section 2407(a)(1)(D) is a significant US anti-boycott regulation that prohibits American persons and companies from complying with unsanctioned foreign boycotts. This article analyses s 2407(a)(1)(D) within the context of the development and application of US anti-boycott legislation which grew out of a response to the Arab League Boycott of Israel. As well, this article examines the relevant First Amendment jurisprudence involving both commercial and political speech and argues that s 2407(a)(1)(D) should be subject to a strict-scrutiny analysis in order to account for the social and political interests often inherent within economic-boycott activity. This article concludes that the government interest in enforcing s 2407(a)(1)(D) is outweighed by the significant restrictions imposed on Americans’free speech rights, and thus, there is no justification for this regulation to be constitutionally upheld and enforced.