Half Baked or The American Dream: Can States Ban Ben & Jerry’s Ice Cream?

The calls to boycott Ben & Jerry’s ice cream in states like Texas, Florida,and Oklahoma will give citizens the common choice between something Half Baked and the American Dream.  The American Dream for many is based on notions the free market and free speech. Government boycotts run against the grain of such principles but many are calling for barring sales of the ice cream after it announced it will no longer sell ice cream in “Occupied Palestinian Territory.”  Politicians have suggested barring sales within the state but there is still a lack of specificity in such plans. Indeed, some of these laws do not seem to support an actual boycott as opposed to a divestment in “listed companies.” Indeed, I am a bit confused by the disconnect between the rhetoric and the reality of these laws in calls for statewide boycotts.

Texas State Comptroller Glenn Hegar announced that he has directed his staff to review whether Ben & Jerry’s or its parent company Unilever has violated the state’s “boycott Israel” laws. Under Chapter 808, Texas companies are barred from refusing, terminating business or taking “any action that is intended to penalize, inflict economic harm on or limit commercial relations” with Israel.  The law however is primarily focused on divesting from such companies as opposed to a real boycott as suggested by some figures to stop sales of the ice cream.

What is interesting is that the Chapter includes a ban on any constitutional, contractual, or regulatory lawsuit for losses under this ban.

808.004. NO PRIVATE CAUSE OF ACTION. (a) A person, including a member, retiree, or beneficiary of a retirement system to which this chapter applies, an association, a research firm, a company, or any other person may not sue or pursue a private cause of action against the state, a state governmental entity, a current or former employee, a member of the governing body, or any other officer of a state governmental entity, or a contractor of a state governmental entity, for any claim or cause of action, including breach of fiduciary duty, or for violation of any constitutional, statutory, or regulatory requirement in connection with any action, inaction, decision, divestment, investment, company communication, report, or other determination made or taken in connection with this chapter.

We have previously discussed the serious constitutional issues raised by these laws. As will come as little surprise to many on this blog, I oppose such government requirements imposed on individual contractors and employees as inimical to free speech, a view shared by various federal courts. I have the same concerns over the arrest of protesters in other countries like France.

This has nothing to do with the merits of the the boycott, divestment and sanctions (BDS) or its opposition. Requiring contractors and employees to pledge that they will not support the BDS movement contravenes core free speech values. Ironically, many of these same politicians support corporate free speech rights in cases like Citizen’s United but want punish companies who disagree with them to be punished.

I have no problem with private boycott calls, which is an exercise of free speech. People have a right to speak through their purchases when a company takes official positions like this on major controversies.  Thus, politicians have called for people to stop buying the ice cream and New York City Mayor Bill de Blasio, said he would be forgoing “Cherry Garcia for a while.”

An actual state boycott could raise serious constitutional questions in interfering with interstate commerce and free speech. However, states have a right to be market participants. In Reeves, Inc. v. Stake, the Court noted:

“The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market….

Restraint in this area is also counseled by considerations of state sovereignty, the role of each State “as guardian and trustee for its people,” and “the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause. Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court.”

However, in a true official boycott, the state is seeking to bar others from buying products from a specific company due to its political stance.  If the boycott is on state purchases or sales on state property, that would come closer to a market participant rather than market regulator model.

The better approach is state officials to speak to their fellow citizens in using their market individual power as opposed to dictating what ice cream can be purchased in the state. The company understood that it was triggering such a response when it made this the official position of the company as opposed to the view of individual corporate officers or owners.  That is the distinction between this boycott and those directed against companies like Chick-fil-a for the views of individual owners.


84 thoughts on “Half Baked or The American Dream: Can States Ban Ben & Jerry’s Ice Cream?”

  1. We are the land of the free, That is what makes this country beautiful. If any company that has views should be free. There actions will help peace between the Palestinians and Israel. The day is coming for those two groups to make peace and to live together. Those who oppose and governers who pretend to care about one group or the other for political purposes want these two groups of people to keep fighting. But the Palestinians and the Israeli people are tired of wars that governers of Florida and Texas try to encourage to keep the war going and be selfish for political reasons and do not care about Palestinians or Israelis. You are the governers of your states, ..govern them you have cov to deal with .Let the Palestinians and the Israelis work it out and make peace between them

  2. OT: Biden infrastructure plans could cost a projected $225,000 per job created through 2031

    Based on a Moody’s analysis, Biden’s full agenda, combined with the bipartisan infrastructure deal, would cost roughly $4.5 trillion and create 20 million jobs over a 10-year period.


    1. This comment has nothing to do with this e-letter of Professor Turley!

  3. Half Baked or The American Dream: Can States Ban Ben & Jerry’s Ice Cream?

    US politicians that are speciously conflating BDS as antisemitic have exposed themselves as pliably supine lickspittles while genuflecting to the apartheid terror state of Israel.

    Disgraceful! But alas these sewer dwelling turd stains have no shame nor conscience.

    Enacting legislation limiting freedom of choice and expression at home in support of a foreign government (ie Israel) and it’s repeated war crimes and violations of 79 UN Security Council resolutions affirms that US politicians are bought – paid for – wholly owned subsidiaries that have willingly sold out the nation.

    Italicized/bold text was excerpted from Foreign Policy Journal found within a report titled:

    Rogue State: Israeli Violations of U.N. Security Council Resolutions

    UN Security Council resolutions directly critical of Israel for violations of its Charter obligations and international law

    Res. 471 (Jun. 5, 1980) – Recalls “once again” the Fourth Geneva Convention, “and in particular article 27, which reads, ‘ Protected persons are entitled, in all circumstances, to respect for their persons… They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof…’”, reaffirms the applicability of the Fourth Geneva Convention “to the Arab territories occupied by Israel since 1967, including Jerusalem”, expresses deep concern “that the Jewish settlers in the occupied Arab territories are allowed to carry arms, thus enabling them to perpetrate crimes against the civilian Arab population”, “Condemns the assassination attempts against the Mayors of Nablus, Ramallah and Al Bireh and calls for the immediate apprehension and prosecution of the perpetrators of these crimes”, “Expresses deep concern that Israel, as the occupying Power, has failed to provide adequate protection to the civilian population in the occupied territories in conformity with the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War”, calls on Israel “to provide the victims with adequate compensation for the damage suffered as a result of these crimes”, “Calls again upon the government of Israel to respect and to comply with the provisions of” the Fourth Geneva Convention and “the relevant resolutions of the Security Council”, “Calls once again upon all States not to provide Israel with any assistance to be used specifically in connexion [sic] with settlements in the occupied territories”, “Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”.


    Learn more at:


    B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories strives to end Israel’s occupation, recognizing that this is the only way to achieve a future that ensures human rights, democracy, liberty and equality to all people, Palestinian and Israeli alike, living on the bit of land between the Jordan River and the Mediterranean Sea. Various political routes can bring about this future, and while it is not B’Tselem’s role to choose among them, one thing is certain: continued occupation is not an option.

    Israel’s regime of apartheid and occupation is inextricably bound up in human rights violations. B’Tselem strives to end this regime, as that is the only way forward to a future in which human rights, democracy, liberty and equality are ensured to all people, both Palestinian and Israeli, living between the Jordan River and the Mediterranean Sea.


    1. “Israel’s regime of apartheid and occupation is inextricably bound up in human rights violations.”

      Nonsense. Arab, Christian and Jewish citizens of Israel all have the same rights. Arabs are in the Knesset and the Israeli Supreme Court. The UN human rights commission has been made up of the worst human rights abusers and anti-Semites. There are loads of organizations that you can quote from that lie and support terrorism. I guess you believe throwing gays off roofs is acceptable behavior? How about stoning women to death?

      Tell us the human rights offered to any people in that area that live outside of Israel. Ignorance is plentiful in the world. We don’t need more of it here.

      1. The apartheid claim regarding Israel is lunacy.
        There are millions of Arabs who live inside the state of Israel – not the west bank or Gaza who have all the rights of citizens and vote.

        The PLO and Hamas have long sought the right to national sovereignity – which the Israeli’s have agreed to,

        The sticking point is that they want Sovereignity – not over just the West Bank and Gaza, but over the entire state of israel and they promise the genocide of the jews if they acheive that.

        Regardless, these palestinians left Israel long ago. They did picked sides and ultimately lost. They now expect to accomplish through the UN the extremination of Israeli’s that the could not accomplish through war.

        1. Thank you Cindy. Did you ever go to Israel and see what can be done in a desert?

          1. Allan…..no, but I have always wanted to go to Israel…..You sound like you’ve been??

            1. Yes, several times. It is a great place for all people to visit. It demonstrates how resilient people are and that with hard work, almost anything can be accomplished. I haven’t been there for quite a while, but I will probably go again to see how it has changed.

              I remember walking along the western wall of the Temple. At the time, it had only one way in and out with little air, so relatively very few people had yet gone. I was with some special people, so we were there for quite a while. The Archeologist in charge of the dig and the Talmudic scholar involved both lectured us and each other. The one who took us in was also very responsible for the dig, so it was a fantastic experience. That was just one of many fabulous things we did.

              Tell your wonderful husband to take you there. Go, go, go.

              1. Allan……….yes, maybe he will take me someday!! How lucky you are! What rich experiences! I have such a deep love and respect for the Jewish people.
                Thank you for sharing.

    2. Wow, Israel has not allowed the UN to cow them into defenselessness !

      Those evil Jews, they are actively opposed to their own genocide.

      Grow up – if you wish to boycott israel for whatever stupid reasons you might have – go for it.

      But if you think for a moment that any nation is going to stand by idly as its enemies plot the extermination of its people because of some UN resolutions – you are an idiot.

      Israel is not perfect – no nation is. But in comparison to its neighbors it is sainted.

      Nearly every muslim majority state in the mid-east and north africa has driven out or killed all jews in the country.
      Nearly every one has also driven out or killed most christians in those countires.

      Anti-semitism ? Racism ? Maybe not – most of the peoples of the mideast are semetic, most are of the same race. Whether christian or jew.

      But inarguably they brutalize their own people on the basis of tribe or often minor religious differences.

      We here nothing from those on the left about the oppression of religions minorities, women, even racial groups in the mideast – so long as the perpitrators of these genocides and oppression are not jews.

      Absolutely nothing exposes the blatant hypocracy of the left so much as their silence regarding the oppression that exists in much of the mideast. Genital mutilation of Women is OK
      but god forbid Jews should defned themselves against those openly committed to their genocide.

    3. Another anti-Semite speaks up! and seeks support in the anti-Semitic actions by … the UN!

  4. I eat Ben & Jerry’s ice cream and I eat Chick-fil-A. Choosing to eat food based on politics is absurd. You will starve if you do that. Serious. Every corporation does things we don’t like. Who cares? If you’re self sufficient and self sustaining good for you. But few are.

  5. Attention campers……….Although from the great state of Tejas, I have to be honest and declare that if God eats ice cream, it’s more than likely that he’s chowing down on Taos Cow from New Mexico. It’s unbelievably delicious. Best flavor? “Holstein Sunset”.

  6. Palestinian resistance arises not from anti-Semitism.
    Palestinian resistance arises from the original and continuous colonization and ethnic cleansing of Palestinians from before 1917 to the present.

    David Ben Gurion, Israel’s first prime minister, openly and publicly admitted, “If I was an Arab leader I would never make terms with Israel. That is natural: we have taken their country. … There has been anti-Semitism, the Nazis, Hitler, Auschwitz, but was that their fault? They only see one thing: we have come here and stolen their country. Why should they accept that?” (Nahum Goldman, The Jewish Paradox, p. 99).

    Please note, as a Zionist, David Ben Gurion, doesn’t even acknowledge the existence of Palestinians as a distant people.
    Rather, he states “ “If I was an Arab leader I would never make terms with Israel. …”
    Simply, he understands and proclaims the motivations not only of the unmentionable Palestinians, but also Arabs “… never make terms with Israel. …”
    dennis hanna

    1. The problem with referencing Nahum Goldmann as a “source” is that this source has less than zero credibility. When Goldmann died, his funeral was not attended by then-Prime Minister Menachem Begin, and no official statement of grief was issued by the Israeli government. And for good reason. In contrast, serial murderer Yasser Arafat, and one of your beloved heroes, sent his condolences, however, stating that “The Palestinians mourn the death of Nahum Goldmann. He was a Jewish statesman of a unique personality. He fought for justice and legitimate rights for all peoples.” Translated to plain English, this mean that Arafat felt that Goldmann fought for the enemies of Israel, America, and Civilization itself.

    2. “Palestinian resistance arises not from anti-Semitism.”

      Such is the constant refrain from useful idiots.

      The so-called “Palestinian cause” is, in fact, an unrelenting terrorist attack on Israel — spearheaded by Iran (an Islamic dictatorship) and executed by its proxy, Hamas.

    3. “If I were an Arab leader I would never make terms with Israel.”

      Anyone can place quotation marks around any statement and attribute it to another, especially after that other has died. But, one can look at quotes from Ben Gurion that say the opposite: “In our state there will be non-Jews as well — and all of them will be equal citizens; equal in everything without any exception; that is: the state will be their state as well.”

      “Please note, as a Zionist, David Ben Gurion, doesn’t even acknowledge the existence of Palestinians as a distant people.”

      Those you today call Palestinians were not indigenous to Israel. Those that were called Palestinians circa WW2 and sometime after were Jews. There was never a state of Palestine.

      “ethnic cleansing”

      When one talks of ethnic cleaning the first thing that comes to mind is the Grand Mufti of Jerusalem. He made agreements with Hitler and the Mufti’s intent was to exterminate all the Jews. It is amazing how history is turned upside-down by some.

      “Nahum Goldman”

      JFeldman already provided you with a good response.

    4. We know that some of those who live in our villages are Jews who converted to Islam after the Muslim conquests beginning in the 7th century, and most of us are the descendants of foreign workers who came to British Mandate of Palestine from the various Arab countries in the wake of the Zionist enterprise. By trying to trace our “ancestry” to the Canaanites, we lie to ourselves and demonstrate our silliness and self- deception to the world. And when we try to claim that Jesus was a Palestinian, we make ourselves an international laughing stock. — Bassam Tawil, “Muslim Blood and Al- Aqsa,” Gatestone Institute, October 31, 2015)

    5. The last time prior to 1948 that The land you call palestine was ruled by its own people was arguably before Christ.

      Were palestinians oppressed – not for 100 years but for 2000 ? Absolutely.

      But in 1948 there was no legitimate claim to sovereignity over Israel by any group that had foundations less than 2000 years old.

      Is Ben Gurion’s statement accurate – absolutely.
      Though I would note that there were both jews and arabs living in both “palestine” and the entire middle east in relative harmony for thousands of years prior to 1948.

      If you wish to piss on the british for 40 years of rule of the area – go for it.

      But pretending that history started with british maladministration in 1917 is lunatic and deceptive.

      Regardless, the PLO and Hamas have political and economic control of a significant portion of what was historically Israel, and would have national sovereignty over that territory – if they were willing to renounce genocide.

      Regardless, you do not get to cherry pick and misrepresent portions of history in a distorted fashion and expect everyone will by it.

      There are few (if any) groups in the world that have endured the systemic and near global repression that jews have.

      An ideology that froths at the mouth over the lynching of about 4400 blacks over the course of a century is blind to the repeated extermination of millions of jews everywhere in the word over the course of 2,000 years.

      If you are going to diefy people based on their status as victims – The jews are at the pinnacle of victimhood.

  7. Ben & Jerry’s should not only be boycotted, but should be prosecuted to the fullest extent of the law, and then some. B&J are Leftist, Anti-American Lowlifes. Here’s a article from Philadelphia, demonstrating what scum B&J are and always will be:

    “Ben from Ben & Jerry’s blasts Mr. Softee as ‘fake ice cream’ after it stepped into the Philly DA’s race”

    The churn of Philadelphia’s Democratic primary for district attorney continued a chilling turn Tuesday, with a Ben & Jerry’s Ice Cream founder’s frosty response to the police union and Mister Softee.

    The Fraternal Order of Police dealt the first cold blow last Friday to District Attorney Larry Krasner, parking a Mister Softee truck in front of his office to cast him as “soft on crime.” The union passed out free soft-serve cones and asked people to support Krasner’s Democratic challenger, longtime homicide prosecutor Carlos Vega.

    Ben Cohen, a Krasner supporter, offered this biting reply Tuesday, accusing the FOP of opposing Krasner because he holds police officers accountable.

    “The FOP is out of control, regularly lashing out at anyone who threatens their unquestioned power,” Cohen said in a statement circulated by Krasner’s campaign. “To be clear, Mr. Softee isn’t even ice cream. It is pumped up with a lot of hot air, which is somehow frozen in a limp sort of way. It is chock full of artificial ingredients. In short, it’s fake ice cream. Just like the lies that the FOP has been telling about a courageous fighter for true justice and one of the best D.A.’s in the U.S.”

    Philly DA Larry Krasner has a race on his hands against Carlos Vega: ‘It’s closer than Larry wants’

    Local FOP president John McNesby on Tuesday said Cohen “is begging for relevancy in this market and Mister Softee and Carlos Vega are the go-to choices for Philadelphians.”

    Know who wants no part of this fight? Mister Softee, the family-run company founded in West Philadelphia in 1956, now based in Runnemede, Camden County.

    “We didn’t know about it until after the fact,” Mister Softee vice president Jim Conway Jr. told Clout of Friday’s FOP event. “Apparently McNesby contacted one of our franchisees. We’re really not interested in politics.”

    As for Cohen, Conway said: “We would like to inform him that Mister Softee is in fact ‘real’ ice cream and has been a staple in the region since our founding in Philadelphia.”

    McNesby told Clout he plans to park the truck in front of Krasner’s office every Friday.

    1. I agree with a boycott, but no government should get involved with a private business. I personally will not buy Ben and Jerry’s ice cream.

    1. As the once talkative Mrs. Bill (Clinton) famously asked – of quite another matter: “What difference does it make?”

  8. I do not think states should ban any law-abiding business.

    State governments should refrain from boycotting our nation’s allies, such as the anti-semitic BDS movement, but they should not interfere with lawful commerce.

    That said, I’ll never buy Ben & Jerry’s again. They are useful idiots assisting those who would finish the Holocaust.


    1. Israel is a terrorist state and anyone who supports them is either ignorant and naive or a terrorist sympathizer. This coming from a dyed in the wool Conservative.

      1. Anonymous is a Communazi who loves Communist China and its terrorist activities. So, naturally, he hates Israel and America, which stand for freedom and liberty, concepts that Anonymous finds not only odious and abhorrent, but hateful.

      2. How is israal a terrorist state ?

        The right to self defense is one of the most fundimental rights in existance.

        I do not agree with every action the state of israel has taken – though I agree with most of them.

        Those palestinians who left to engage in genocidal war against the israelis are justifiably not allowed to return.
        They have been graciously given a substantial teritory to administer and the right of national sovereignity over that territory conditional only on renouncing their openly advocated genocide of jews.

  9. Now that the opioid case has been settled, the state AGs should sue Ben and Jerry’s for causing untold Americans to become obese. Also, it is overpriced.

  10. As a supporter of free speech, even though Ben & Jerry’s move to withdraw from a market based on political reasons is a defamation of Israel, I don’t see how any conservative who believes in free speech can think a govt action to ban the ice cream is acceptable.

    1. “Defame:” damage the good reputation of (someone); slander or libel. Even if Israel has a “good reputation” among Westerners, in particular Americans, it can still be among the most hated nations extant among earth’s overall population, and certainly so among the world’s 1.8B Muslims.

      Most of Israel’s “good reputation” among Americans derives from its symbiotic relationship with so-called Western “Christians,” whom are more accurately described as Zionist-Christians, brainwashed since the early 20th C. by the Scofield Reference Bible published by Oxford. The essence of Zionist-Christian brainwashing can be described as errant teaching that modern Israel is the fulfillment of O.T. Israel.

      1. You are historically and factually clueless.

        Was Nixon some evangelical christian ?
        Israel would not have survived but for blatantly anti-semetic Nixon’s willingness to send massive military assistance to Israel during the Yom Kipur war.

        We have myriads of idiotic nonsense regarding history in posts above.

        When in the past 2000+ years has there been a nation in the land that is now israel that was locally sovereign ?

        NEVER. From the roman occupation forward israel has been subject to the sovereignity of some foreign power – the romans, the turks the british – all foreigners.

        There is not and never has been a palestinian nation that was not of jewish sovereignity.

        You can have whateever sympathy you wish to have for the palestinian people, that does not change the fact that they have no historical claim to sovereignty in the mid east.

        The Israeli’s have offered them that opportunity – conditional on renouncing their policy of Jewish genocide.

        Everyone who disagrees with you is not “brainwashed”.

        I am not personally either evangelical, or particularly christian. I am not republican.
        But I am also not so stupid as to fail to grasp that the palestinians are their own worst enemy.

        They can not renounce genlocide, they can not accept something they have never had – sovereignity over a palestinian nation without demanding more than anyone ever promised them or that they have any historically sound claim to.

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