Below is my column on recent effort to boycott states over their abortion laws, a growing push for states to punish other states with measures like travel bans. While boycotts are an important expression of free speech by citizens, it raises more difficult questions when done by states seeking to coerce other states. It can create a morass of boycotts and tit-for-tat measures. This column suggests a way to end the practice through a simple deterrent measure based on Article 5 of the North Atlantic Treaty. It would be to the benefit of all states (and our federalism system as a whole) to remove state-to-state boycotts from the political arena.
Here is the column:
“An attack on one is an attack on all.” That reference to Article 5 of the NATO treaty is a virtual mantra in Washington these days as “the bedrock of peace and security in Europe for over half a century.” But the benefits of such deterrence should not be lost on another group under increasing threat for their political alliances: America’s red states.
From California to Illinois, legislators are moving to boycott any state contracts with businesses in states with anti-LGBTQ legislation or restrictive abortion laws. At the same time, many Democratic leaders are pressuring companies to boycott red states too.
This past week, California Gov. Gavin Newsom (D) called upon Hollywood production companies to stop filming in states such as Georgia or Oklahoma with strict anti-abortion laws. In Georgia, Democratic gubernatorial candidate Stacey Abrams has warned that companies will cut off ties with such states, including her own, if they do not change their laws. (Abrams previously was criticized by conservatives for fueling the boycott of her own state which led to the withdrawal of the All-Star Game from Atlanta over election reform laws.)
Such campaigns have succeeded, particularly with private companies. Indeed, in both restricting speech and boycotting states, the left has found greater success with private companies than with voters in pushing their agenda. The New York Times warned pro-life states that they risk their “competitive edge” in the market if they do not change their laws to conform with blue-state views.
The boycott threats have been growing since 2016, when North Carolina was targeted for passing a bill limiting bathroom access by biological gender.
The point of these campaigns is to pressure state officials to ignore the will of a majority of their citizens and pass laws to appeal to corporations and other states in a competitive market. Such boycotts by private citizens or groups are an important form of political speech; various state laws barring state contracts with those who support boycotts of Israel, for example, have been struck down as unconstitutional, although an appellate court recently upheld an Arkansas law.
However, states or companies engaging in such boycotts is a different matter. Many consumers do not want companies like Disney to engage in political debates over issues like transgender rights. One poll showed 67 percent opposed corporate opposition to an “anti-grooming” law, a view that appears to be impacting Disney. Consumers can vote with their pocketbooks in the “go woke, go broke” movement.
For Democratic leaders like California Attorney General Rob Bonta, official boycotts on travel are simply a case of states acting like consumers and “aligning our dollars with our values.” However, it is more than that. It is speaking as a state to isolate and punish states with opposing views on abortion, transgender rights, gun rights and other policies. In a system based on federalism principles, we embraced the model of allowing each state to reach its own conclusions on divisive questions. The result can be consensus around moderate positions that escape both parties, which often are driven by the extremes on issues like abortion.
Take this week’s vote in Kansas, which surprised many by overwhelmingly supporting the preservation of abortion rights. Although many Democrats demand unrestricted abortion rights and many Republicans demand total bans, a Harvard-Harris poll shows 72 percent of Americans would allow abortion only until the 15th week of pregnancy or a more restrictive limit. When states try to coerce other states to yield to their demands on such issues, they hinder state experimentation and expression.
The result is increasingly bizarre. California college sports teams are barred from spending money to travel to any state on the liberal “naughty list” — a problem when you are USC and UCLA and just moved from the Pac 12 to the Big Ten. They now face raising private funds to be able to play in blacklisted states.
There is a way to end this madness. It is an Article 5-like alliance.
While this would ideally be an agreement by all states, red states should pass legislation barring state business or travel with any state that engages in boycotts. The key would be that the agreement must stand on principle, allow no exceptions, and trigger immediate reciprocity: A travel ban on, say, Nebraska would result in a reciprocal ban not just from Nebraska but from every state in the alliance.
In this way, when a state like California targets a state like Utah, it will shoot itself with roughly half of the country. Eventually the administrative and competitive costs of such measures would become prohibitive.
California’s enormous economy has given leaders like Gov. Newsom a sense of impunity in targeting other states. There are now 17 states on California’s banned list under a 2016 law that automatically adds states which discriminate against or remove protections for people on the basis of sex, gender identity or sexual orientation. Imagine if those 17 states had automatic reciprocity laws — add any one of us to a boycott list, and you will be boycotted back by all.
Newsom is running ads in Florida and Texas, telling their residents that “freedom is under attack in your state” — based on a majority of voters there reaching opposing conclusions on controversial issues — and urging Floridians and Texans to move to California. They appear to have two options in Newsom’s mind: Move to California or adopt its positions, so democracy will be safe from itself.
Evan Low, a California lawmaker who authored that state’s ban, put it simply: “The current culture war is not a game.” Indeed — which is why we should look to “the most successful military alliance in history” to end reckless incursions by neighboring states.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.