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. If the people of Florida want the state to invest in Ben&Jerry’s all they need to do is vote out the state leadership. There should be protestors with free Ben&Jerry’s now posters on every corner. This travesty of justice can not stand. Call in Antifa! Call in BLM. Free ice cream for everyone should be a mainstay of the platform of the Florida Democratic Party. What’s one more free thing here or there. It will only cost a mere one hundred billion dollars out of the state budget. Cone lickers unit.

  2. Florida is not proposing a ban on Ben&Jerry’s in the state. There is a word that adequately addresses what they are doing. The operative word is “divest”. Florida is divesting their state retirement portfolio of Ben&Jerry stock. No closing of their retail locations or limiting of their speech is occurring. It’s interesting how one word (divest) can be so easily overlooked in order to proclaim a preconceived horror of the limiting of free speech and the tearing away of freedom in general. https://news.yahoo.com/florida-texas-threaten-ben-jerrys-032000298.html. The suggesting is now being made that Florida should not be able to determine what stock it should have in their retirement portfolio. Get a grip.

  3. There are actually two different factions that are Pro-Israel. The far right faction has silenced much of the opposing viewpoint. Check out http://www.JStreet.org for the entire discussion. Guessing Ben & Jerry’s is supporting the faction being silenced.

    1. J Street deceptively describes itself as a pro-peace movement, but they are quite the contrary. Follow J Street policies and likely Israel would not exist. Their policies are responsible for the most recent war in the Middle East.

      J Street has partnered with haters of Israel. Its positions almost always, if not always, opposing measures taken by Israel to protect its citizens.

      1. Nations and map boundaries come and go every year. Google “countries that ceased to exist” or “nation maps that changed.” The US and then-League of Nations created modern Israel out of thin air by threat of force. Does anyone reading this deny that? Based on what?

        Does the earth cease to turn on its axis if Palestine replaced Israel on the map? If threat of violence was good for the gander is it not good for the goose for some modern country by threat of violence to cause Palestine to replace Israel on the map? Contrary to Truman’s and the LON’s intent, George Washington in his Farewell Address forbade “all permanent foreign entanglements.” Very much the opposite of Hillary’s and Barack’s so called “permanent bond with Israel” words that appear to spit on GW’s advice.

        What makes your advice or Hillary’s or Barack’s better than GW’s? I ask for a friend.

        Certainly it’s a crock that modern Jews need Israel for security, as over 50% of the world’s Jews freely choose to live elsewhere.

        1. “Nations and map boundaries come and go …”

          Israel has sovereign rights to the area where it exists, including Judea and Samaria. They are the indigenous people of the region with a history thousands of years older than Mohammed. The Jews have had a constant presence in the land. The capital of Israel is Jerusalem, and no other country in history has ever had Jerusalem as its capital. Jerusalem is mentioned hundreds of times in the Jewish holy books and never mentioned in the Koran.

          The area was controlled by western powers and then divided up by them. Hence, if you wish to state that boundaries come and go, the Arab nations have that same problem as their boundaries came from the same powers. Still, Israel existed thousands of years earlier before those powers had control.

          What is Palestine? Who are the Palestinians you talk about? Around the time of WW2, and sometime after, when one spoke of Palestinians, one spoke about the Jews living in Israel. There never was a Palestinian nation, and many of the so-called Palestinians weren’t even born there. They came from other Arab countries. Yasir Arafat was born in Egypt like many others. Do you think a person living in Israel or Judea and Samaria with the name Mugrabi is from the area? If you believe that, you would be wrong. That name comes from North Africa.

          I won’t get into international law from the last century to settle the legal issues of ownership because you already said you weren’t interested in the laws or anything like that. I will tell you that the Mandate for Israel was much more extensive. Britain unilaterally removed almost 80% of the land to create Jordan. If you remember your history, though the same people you talk about are Arab, like the Jordanians, Jordan threw them out, Egypt created a line none of them could pass.

          Let me make one final point. The Arabs that left Israel mostly left on their own accord. An approximately equal number of Jews left the Arab nations under the threat of death without their property or money.

          Maybe you need to readjust your sites and reconsider what you are saying unless, of course, your issue is not right and wrong, but prejudice.

          1. We in America think the rights of indigenous people are sacred and sacrosanct and under no circumstances should be undermined, especially if they were the first people to ever populate the land.

            1. “. . . indigenous people . . .”

              You mean the Indians? — those hunters and gatherers who, as a rule, spit in the face of a magnificent gift: Western civilization.

              When someone teaches me a better way to do something, I thank them. You and your ilk kick them in the teeth.

        2. “Does the earth cease to turn on its axis if Palestine replaced Israel on the map?”

          No. But despotism would grow, as would Iran’s desire to expand its theocratic dictatorship.

          I, for one, do not believe that totalitarianism is good for human beings. Others, apparently, have a different view.

      2. J-Street is a Communazi organization supporting only Leftist causes. The religion of its members is Leftism. They hate liberty, hate freedom, hate America, hate Israel, love Communist China, love Communist Cuba, and are vile degenerates.

  4. I do not support a state ban, but as usual Governor Desantis played this very well.

    Now all of you hypocrites screaming about a state boycott (remember that I said I do NOT support it) how do you feel about state colleges or colleges that get tons of federal and state money banning Chic Filet? How about when Austin banned them from the airport? I remember when Boston Mayor Menino ( a true moron) saying that Walmart would not be coming to Boston and that Chic Filet would be banned from tourist trap Fanuel Hall? Any outcry for the phony left?

  5. Ben and Jerry’s is exercising its absolute right to private property and freedom of speech. Ben and Jerry’s is private property, over which only the owners have the power to “claim and exercise dominion,” and the owners are exercising their absolute 1st Amendment freedom of speech. No law is constitutional which prohibits either action.

    Ben and Jerry’s presumption and promulgation that Israel is “Occupied Palestinian Territory” is not dissimilar to the acts of Americans who grasp and speak to the fact that Abraham “Crazy Abe” Lincoln was an anti-constitutional and anti-American, tyrant, despot and dictator, and that all of the acts that he and his successors undertook, such as the then and still illegitimate “Reconstruction Amendments, which were improperly ratified, and improperly ratified under the duress of brutal, post-war military occupation, oppression and suppression, were and remain unconstitutional, for example, denying fully constitutional secession, prosecuting an illegal war of aggression (not common defense) against a sovereign foreign nation, suspending habeas corpus, summarily jailing adversarial publishers and political opponents, destroying printing presses, conducting election fraud and vote tampering in 1864, confiscating legal and deeded private property, issuing a proclamation with no legal basis or authority, failing to deport illegal aliens under the Naturalization Act of 1802, etc.

  6. Why would anyone eat the ice cream that would magnetized them, and then they would be walking around with Bill Gates micro-chips in them. Next thing they would know, they’re donating to George Soros and the Democratic Party. {Spoiler Alert} What was wrote about the ice cream IS NOT TRUE. The last thing I want to see is the Trump cult writing about how they feel magnetized because they ate some rocky road a couple of months ago.

  7. Iran has called for the death of Israel. Iran has declared its unconditional support for the Palestinian army. https://www.reuters.com/world/middle-east/iran-hails-palestinian-victory-warns-deadly-blows-against-israel-2021-05-21/. Through their action Ben & Jerry are giving their support to Iran and Palestine’s call for the death of Israel. When nations like this tell you who they are you need to believe them. Before World War Two there were nations who said exactly who they were but the world could not believe that a nation state could be that evil. The question that remains is, will we believe them now?

    1. Do you deny that the US and League of Nations created Israel out of thin air by threat of force? It’s strange, disturbing and hypocritical how popular is it among Westerners, especially Zionist-Christians, to go bat shite crazy when others promise by threat of force to undo what someone else created by threat of force. Why exactly is what’s good for the goose not good for the gander?

      “Denial of force for thee, but not for me!” scream Western Zio-faux-Christians. (Every Christmas Jesus is the God of Peace, at all other times he’s the strange blood thirsty God of War, death, violence, orphans and widows.)

      It makes perfect sense and is no surprise that the 3 subject nations in Jonathan’s above article are all part of the so-called American “Bible Belt.” Upon request I’ll post proof links that the root core essence of Western “Evangelicals” is overwhelmingly Zionist.

      I don’t support any side in Israel except for the USA to butt out of the ME and let the ME decide it’s own fate. If Bible Belt Americans are so enamored with Israel and “Israelis” why not welcome them with open arms?

      What an insult to US taxpayers for the US to use threat of force to collect $5B in annual taxpayer funds and give same to Israel whom then uses that money to buy US weapons. GOP General and POTUS Eisenhauer warned us of this when he coined the term “Military Industrial Complex.”

      1. I waited for TIT to respond but seeing no response; I will.

        “Do you deny that the US and League of Nations created Israel out of thin air by threat of force?”

        Do you deny that every nation’s boundaries in the area were created out of thin air? Do you deny the Hebrew existence in the area since about 1300 BC? Do you deny Britain’s attempt to keep Jews out of the area while Arabs were freely permitted to enter? In that area, do you deny that those of the Muslim faith have been consistently killing those of the Christian faith? Do you deny that Lebanon was predominantly a Christian nation but today is more Muslim?

        What is your point?

        “What an insult to US taxpayers for the US to use threat of force to collect $5B in annual taxpayer funds and give same to Israel whom then uses that money to buy US weapons.”

        Firstly, the US wants that money spent on US military weapons, not elsewhere. The Israeli’s provide the US military with modifications of the weapons and intelligence.

        More importantly, why do you only complain about money going to Israel?

        You do realize that the US sends loads of money and other things to Israel’s Arab neighbors. Right? Some of that money is used to pay terrorists after they bomb a school bus. Do you like that as well?

        You only complain about what Israel receives and do not complain about what their enemies receive indicates severe bias or, worse, prejudice and anti-Semitism.

  8. Have you heard? It has been found out that a large national chain called Shaky Shake has called for the death of all black people. Should the State of New York call for the divestment of its portfolio of all Shaky Shake stock? Some of the posters here say that the have now found a reason to buy more Ben & Jerry ice cream. There brethren with the same thought process say that they have now found a reason to buy more Shaky Shake. Not really an ounce of difference is to be found between the two camps.

  9. With the stroke of a pen, the government makes it illegal to build a pipeline (Keystone).

    But it’s wrong for the government to ban an ice cream company?

    Some people are in dire need of the *principle* of private property, and the *principle* of the government’s proper function.

  10. As far as I am concerned Ben & Jerry can put their ice cream where the sun does shine.

  11. Florida is not banning the sale. DeSantis according to State law is having them included on the “Scrutinized Companies List” which would prevent the State Board of Administration in accordance with Section 287.135, Florida Statutes from buying stock in Unilever, parent of Ben & Jerry’s, and its corporate entities. The state would also be unable to contract with these companies unless they ended their boycott. So no “ban”. No different when states stopped doing business with South African companies during Apartheid.

  12. Professor Turley is absolutely right in his comments.

    Government may invest retirement funds as it wishes so long as it in the best interest of the Fund and may state why monies are shifted away from one entity to another as long as its fiduciary responsibilities are met.

    Government may encourage individuals to do the same by its public stance on an issue.

    Government cannot ban, bar, or penalize individuals for their investment or trade decisions re any private entity for political reasons.

    This boycott thing is a personal decision for the People….we decide where and how we spend what little money the Government allows us to retain from our earnings.

    Don’t we all wish we had the ability to pick and choose our spending decisions with government as we do private entities.

    I quit buying Ben and Jerry’s Ice Cream years ago for the very reason that we see occurring now…..they took a political stand completely opposite of what I believe in….and by doing so lost my patronage.

    That is the way it is supposed to be….just as we see the go woke…go broke reaction at the NBA and other businesses.

    Bluntly said…..Piss off enough of your customers and you will go out of business.

    Business needs to stay out of politics, Sports needs to stay out of politics, Government needs to stay out of politics…..run your business, run your League, run your Government….but stay out of politics….except as an Individual Citizen then use every means you wish to express your political views.

  13. “ Indeed, I am a bit confused by the disconnect between the rhetoric and the reality of these laws in calls for statewide boycotts.”

    Isn’t this the “cancel culture” many on the right complain about? Here you have state government engaging in cancel culture because it didn’t like a private company’s free speech right to make a statement on an issue.

    Why is it so special that any boycott against Israel that such a response is necessary?

    Are Israelis so sensitive to the idea that someone or a company disagrees with them?

    “ 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.”

    Here it seems Turley is suggesting government go around constitutional restraints by encouraging individual citizens to use their “market individual power” to do what the state can’t really do on its own. But Turley is against government making essentially the same thing when it comes to social media by flagging misinformation on social media platforms.

    1. Svelaz, once again, you are misreading what Turley is saying. He is stating an alternative to state action for those that wish the government to do something. That is appropriate. I will interpret for you if English isn’t your first language. The government should not and cannot do what you want. That type of task is left to the people.

      On the point of cancel culture, you should only be so concerned with cancel culture in general. That is impossible for you because you are a hypocrite.

      1. @S.Meyer
        But the government can dictate how it will invest in its pension funds right?

        BDS is a racist act judged to be Antisemitic.

        So Florida can decide to divest from Unilever its parent company, and if there are any tax forgiveness programs in Florida where the state / city gave prefferential treatment to gain a factory or jobs … they could rescind it.

        That would hurt their bottom line.
        Businesses are already pushing back and removing B&J from their shelves.

        BDS is based on a lie.

        1. BDS is based on a lie. Many of the leaders and promoters of BDS have been promoting the destruction of Israel by any means. Many of them would like to see all Jews exterminated from the world. In fact, many of them hate the west and would like to see this nation in ruins.

          We have solid proof of the last sentence. It is in print. The Muslim Brotherhood memorandum said one of their goals was the destruction of the west. In this case, I don’t think they are liars and accept what the memorandum says. If they hate this country so much, we should be prepared to defend ourselves from ruin. However, the Islamists and the ‘Marxists’ have one thing in common, the destruction of America as we know it. They have teamed up together. Should they achieve some type of joint victory, the next thing will be the Islamist and the ‘Marxist’ killing each other. They are incompatible.

          I am not saying all Muslims are bad, rather Sharia Law makes the religion political as well as religious. Even nice people in a crunch might follow their religious leaders that are also political.

          “But the government can dictate how it will invest in its pension funds right?”

          Precedent says yes, but I don’t know if that is the best response, whether it be South Africa or Israel. I think a better way exists, but that takes a population that wishes to be free and not under the thumb of big government.

          1. All one has to due is read the BDS site to see they consider Israel as occupied land and support with the history of the land starting 1948.

            1. That opinion of course doesn’t comply with rational thought or with international law and international agreements. Jordan was an occupier.

      2. S. Meyer,

        “ The government should not and cannot do what you want. That type of task is left to the people.”

        Ben and Jerry are part of “the people”. So if they don’t want to sell ice cream on Israeli occupied Palestine why should it be a the government’s business?

        Texas is engaging in cancel culture to protest a private company’s decision not to sell ice cream to a certain country. By threatening Ben and Jerry with boycotting their product the government is in seeking effect punishing it for exercising its free speech right.

        Lots of companies engage in political issues. Just by contributing money to causes or politicians they are doing exactly what Ben and Jerry are doing. Turley points this out in his column.

        1. Sorry, Svelaz trying as hard as you can to point out the facts is not going to work with this crowd, but thanks for trying. Their mind is made up no matter what the truth or facts may be.

          1. Fishwings, no kidding, but not making an effort once in a while can lead to the growth of this kind of ignorance to the point where it becomes dangerous.

            Case in point, just a couple of hours ago Alabama governor Kay Ivey, did exactly what I predicted yesterday.

            “ Alabama Gov. Kay Ivey issued an impassioned plea for residents of her state to get vaccinated against Covid-19, arguing it was “time to start blaming the unvaccinated folks” for the disease’s continued spread.

            “I want folks to get vaccinated. That’s the cure. That prevents everything,” Ivey, a Republican, told reporters in Birmingham, Ala., on Thursday.

            “Why would we want to mess around with just temporary stuff?” she said. “We don’t need to encourage people to just go halfway with curing this disease. Let’s get it done. And we know what it takes to get it done.”


            She has run out of patience with the ignorant and the stupidity of going thru another pandemic capable of hurting the economy, again.

            This is why Republican leadership is literally doing an about face on vaccinations. They are looking at being directly blamed for this new emerging fiasco, a totally preventable one, and this time there are few if any excuses. It won’t bode well for republicans if this new emerging wave affects their chances in the next election.

            1. Does the Left ever tire of politicizing the vaccination rate (and everything Covid)?

              If they were sincere about their goal (more vaccinated people), they wouldn’t constantly omit obvious, “inconvenient” facts:

              Macon County, AL is some 80% black (a predominantly democratic constituency). That County’s vaccination rate is some 30%.

          1. Hullbobby,

            “ Svelaz, how did you feel about companies that continued to trade with South Africa?”

            I’m assuming you are referring to the time when apartheid was still a thing in South Africa. I didn’t care at all. I was was still in elementary school and had more important things to consider like when the latest garbage pail kids cards would come out.

            1. You sound like someone in elementary school now. What a surprise you aren’t. Now you know about the South Africa situation, so what do you say today? Hypocrisy Alert!

        2. Svelaz, when you say: “Ben and Jerry are part of “the people”. So if they don’t want to sell ice cream on Israeli occupied Palestine why should it be a the government’s business?”, you confirm your lack of ability to read and to think. Read my position above slowly, and if need be, ask someone for help.

          The rest of your response doesn’t pertain to my words, but it does involve your lack of reading comprehension.


        3. Hey FREE MARKETS!!!!

          DeSantis wants to tell the cruise industry how to run its business. If Typhoid Mary wants to be a cook on a cruise ship that’s okay by him.

          So why do people object to telling Ben and Jerry’s how to operate?

          1. “Hey FREE MARKETS!!!!”

            DeSantis is telling how Florida investments work. In this case, it works the same for all sides. When Democrats do such a thing, it frequently only works against one side.

            One can support or not support such a measure. Both are logical positions. Democrat behavior, however, is not rational. It is downright totalitarian.

            Hey ‘Marxist WANNABE’, how do you like being told what you have to do even if those in favor don’t have to do it?


  14. Reality Check:
    Ben & Jerry’s Ice Cream founded and named after two Jewish-Americans is being portrayed as anti-Semitic by a former Jim Crow state? Vermont were the company was started never practiced Jim Crow and is generally friendly to all people, including Jewish people. It’s also likely that the real Ben & Jerry support “J Street” (a pro-Jewish organization) that many members of Congress and even some presidents support.

    1. Are you saying that Ben and Jerry can’t be acting against the well being of Israel and by extension America? Are you saying that a Jew can’t be a self-hating Jew? Have you not seen enough self-hating whites in the last year?

  15. Some states regulate the sale of spirits more than others, and regulate the sale of liquor; that is, there may certain brands not available for sale. I assume that is what you mean by the state as an actor in the marketplace.

    NTL, I have issues with the state banning the sale of an otherwise legal product. I assume that the state could encourage their citizenry to boycott without any repercussions

  16. You scream, I scream, we all scream for … Any company stupid enough to annoy 50% of its customers to the point of a boycott is a pretty stupid group of people. Hopefully Unilever will do a B&GBDS and get rid of the company so as not to affect its other brands. In the meantime, I’ll enjoy other brands when I scream for ice cream.

  17. De crazy she grows daily.
    Buycots (Goya) and boycots (Chick-fil-a) are political speech. Political speech must be free.

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