State and local foreign policy initiatives and free speech: The first amendment as an instrument of federalism

Stanford Journal of International Law

Volumn 35, Issue 1, 1999, Pages 1-47

  Porterfield, Matthew C ^a,b,c  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b VERMONT LAW SCHOOL   (United States)

^c UNIVERSITY OF VERMONT   (United States)

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[No Author keywords available]

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EID: 0033430866     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (329)

1. See, e.g., David Schmahmann & James Finch, The Unconstitulionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 VAND. J. TRANSNAT'L L. 175 (1997) (analyzing the constitutionality of such measures).
2. U.S. CONST. art. I, § 8, cl. 3.
3. See Schmahmann & Finch, supra note 1, at 189-99; see also Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW J. INT'LL. & BUS. 563, 577-79 (1993) (arguing that these measures cannot be sustained under the foreign commerce review because they communicate messages inconsistent with federal policies or laws"); Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 VA. L. REV. 813, 831-46 (1986) (noting that courts have relied on Commerce Clause jurisprudence'"to strike down state interference with interstate and foreign commerce even in the absence of federal regulation").
4. See Schmahmann & Finch, supra note 1, at 189-99; see also Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW J. INT'LL. & BUS. 563, 577-79 (1993) (arguing that these measures cannot be sustained under the foreign commerce review because they communicate messages inconsistent with federal policies or laws"); Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 VA. L. REV. 813, 831-46 (1986) (noting that courts have relied on Commerce Clause jurisprudence'"to strike down state interference with interstate and foreign commerce even in the absence of federal regulation").
5. See Schmahmann & Finch, supra note 1, at 189-99; see also Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW J. INT'LL. & BUS. 563, 577-79 (1993) (arguing that these measures cannot be sustained under the foreign commerce review because they communicate messages inconsistent with federal policies or laws"); Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 VA. L. REV. 813, 831-46 (1986) (noting that courts have relied on Commerce Clause jurisprudence'"to strike down state interference with interstate and foreign commerce even in the absence of federal regulation").
6. The Supreme Court did not strike down any assertions of federal power as violations of state sovereignty during the forty-year period between Carter v. Carter Coal, 298 U.S. 298 (1936), and National League of Cities v. Usery, 426 U.S. 833 (1976).
7. The term "new federalism" has been used to describe many different aspects of the evolving relationship between the state and federal governments. See, e.g., Mai Linh Spencer, Suppress or Suspend: New York's Exclusionary Rule in School Disciplinary Proceedings, 72 N.Y.U. L. REV. 1494 (1997) (expansion of individual rights under state constitutions); Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reforn.?, 81 MINN. L. REV. 97, 111 (1996) (voluntary "devolution" of power from the federal government to the states). I use the term here to refer to recent Supreme Court decisions defining the limits of enumerated federal powers and the sphere of sovereignty reserved to the states under the Tenth Amendment. See infra notes 70-87 and accompanying text.
8. The term "new federalism" has been used to describe many different aspects of the evolving relationship between the state and federal governments. See, e.g., Mai Linh Spencer, Suppress or Suspend: New York's Exclusionary Rule in School Disciplinary Proceedings, 72 N.Y.U. L. REV. 1494 (1997) (expansion of individual rights under state constitutions); Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reforn.?, 81 MINN. L. REV. 97, 111 (1996) (voluntary "devolution" of power from the federal government to the states). I use the term here to refer to recent Supreme Court decisions defining the limits of enumerated federal powers and the sphere of sovereignty reserved to the states under the Tenth Amendment. See infra notes 70-87 and accompanying text.
9. The status of state and local foreign policy measures under the First Amendment has received limited attention. See Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 829 (1989) (State and local foreign policy initiatives "implicate significant freedom of speech and petition values. Their real addressee is not some foreign government but our own U.S. policymakers, and their real purpose is not to intrude into the conduct of our foreign relations but to influence the making of our foreign policy."); Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, FOREIGN POL'Y, Spring 1992, at 163 ("The First Amendment guarantee[s] the rights of all citizens, including governors, mayors, and their employees, to speak out on foreign policy."). Andrea McArdle presents the most extensive treatment of the issue, arguing that state and local foreign policy initiatives "implement the expressive and associational interests of individual citizens." Andrea L. McArdle, In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policymaking, 62 TEMP. L. REV. 813, 832 (1989). The theory I offer in this Article differs from McArdle's position with regard to both the rationale for extending the First Amendment's protection to state and local measures and the scope of that protection. I argue that state and local governments possess judicially cognizable First Amendment rights that limit the federal government's authority to prohibit certain types of state and local activity. Although McArdle suggests that state and local governments can serve as conduits for the expressive interests of individual citizens, she indicates that they lack their own, independent First Amendment rights. See id. at 834 ("The idea proposed here is not that state and local government entities themselves possess [F]irst [A]mendment rights. To the extent that state or local governments as governments have a 'right' to participate in foreign policymaking decisions, it is more a political right inherent in the federal system...."). In addition, McArdle states that "state and local government measures that combine expression intent on influencing national policy with regulatory or market activities generating specific economic or political consequences abroad, are equally subject to a [F]irst [A]mendment analysis...." Id. at 845. In contrast, I argue that the First Amendment protects only those activities by state and local governments that would be protected if conducted by private parties or organizations, but does not extend to regulatory actions. See infra note 254 and accompanying text.
10. The status of state and local foreign policy measures under the First Amendment has received limited attention. See Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 829 (1989) (State and local foreign policy initiatives "implicate significant freedom of speech and petition values. Their real addressee is not some foreign government but our own U.S. policymakers, and their real purpose is not to intrude into the conduct of our foreign relations but to influence the making of our foreign policy."); Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, FOREIGN POL'Y, Spring 1992, at 163 ("The First Amendment guarantee[s] the rights of all citizens, including governors, mayors, and their employees, to speak out on foreign policy."). Andrea McArdle presents the most extensive treatment of the issue, arguing that state and local foreign policy initiatives "implement the expressive and associational interests of individual citizens." Andrea L. McArdle, In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policymaking, 62 TEMP. L. REV. 813, 832 (1989). The theory I offer in this Article differs from McArdle's position with regard to both the rationale for extending the First Amendment's protection to state and local measures and the scope of that protection. I argue that state and local governments possess judicially cognizable First Amendment rights that limit the federal government's authority to prohibit certain types of state and local activity. Although McArdle suggests that state and local governments can serve as conduits for the expressive interests of individual citizens, she indicates that they lack their own, independent First Amendment rights. See id. at 834 ("The idea proposed here is not that state and local government entities themselves possess [F]irst [A]mendment rights. To the extent that state or local governments as governments have a 'right' to participate in foreign policymaking decisions, it is more a political right inherent in the federal system...."). In addition, McArdle states that "state and local government measures that combine expression intent on influencing national policy with regulatory or market activities generating specific economic or political consequences abroad, are equally subject to a [F]irst [A]mendment analysis...." Id. at 845. In contrast, I argue that the First Amendment protects only those activities by state and local governments that would be protected if conducted by private parties or organizations, but does not extend to regulatory actions. See infra note 254 and accompanying text.
11. The status of state and local foreign policy measures under the First Amendment has received limited attention. See Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 829 (1989) (State and local foreign policy initiatives "implicate significant freedom of speech and petition values. Their real addressee is not some foreign government but our own U.S. policymakers, and their real purpose is not to intrude into the conduct of our foreign relations but to influence the making of our foreign policy."); Michael H. Shuman, Dateline Main Street: Courts v. Local Foreign Policies, FOREIGN POL'Y, Spring 1992, at 163 ("The First Amendment guarantee[s] the rights of all citizens, including governors, mayors, and their employees, to speak out on foreign policy."). Andrea McArdle presents the most extensive treatment of the issue, arguing that state and local foreign policy initiatives "implement the expressive and associational interests of individual citizens." Andrea L. McArdle, In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policymaking, 62 TEMP. L. REV. 813, 832 (1989). The theory I offer in this Article differs from McArdle's position with regard to both the rationale for extending the First Amendment's protection to state and local measures and the scope of that protection. I argue that state and local governments possess judicially cognizable First Amendment rights that limit the federal government's authority to prohibit certain types of state and local activity. Although McArdle suggests that state and local governments can serve as conduits for the expressive interests of individual citizens, she indicates that they lack their own, independent First Amendment rights. See id. at 834 ("The idea proposed here is not that state and local government entities themselves possess [F]irst [A]mendment rights. To the extent that state or local governments as governments have a 'right' to participate in foreign policymaking decisions, it is more a political right inherent in the federal system...."). In addition, McArdle states that "state and local government measures that combine expression intent on influencing national policy with regulatory or market activities generating specific economic or political consequences abroad, are equally subject to a [F]irst [A]mendment analysis...." Id. at 845. In contrast, I argue that the First Amendment protects only those activities by state and local governments that would be protected if conducted by private parties or organizations, but does not extend to regulatory actions. See infra note 254 and accompanying text.
12. See Jessica V. Carter, Note, The Role of Local Government in Foreign Trade: The Case of Baltimore, 15 MD. J. INT'L L. & TRADE 169, 195-96 (1991) (noting Baltimore's relationship with Xiamen, People's Republic of China).
13. See Brenda S. Beerman, Comment, State Involvement in the Promotion of Export Trade: Is It Time to Rethink the Concept of Federalism as It Pertains to Foreign Relations ?, 21 N.C. J. INT'L L. & COM. REG. 187, 189 (1995) (describing state foreign policy activities).
14. See Spiro, supra note 3, at 816-24.
15. See generally Schmahmann & Finch, supra note 1 (analyzing the constitutionality of state and local sanctions against Burma). Municipal ordinances purporting to establish "nuclear free zones" also have been criticized as intrusions into an area of exclusive federal authority. See Lori A. Martin, Comment, The Legality of Nuclear Free Zones, 55 U. CHI. L. REV. 965 (1988). These ordinances employ many of the same mechanisms as the foreign policy measures that are the focus of this Article, including various combinations of regulatory measures and limitations on the expenditure and investment of public funds. See id. at 966-67 (describing various provisions of nuclear free zones regulation).
16. See, e.g., Richard B. Bilder, East-West Trade Boycotts: A Study in Private, Labor Union, State and Local Interference with Foreign Policy 118 U. PA. L. REV. 841, 882-84 (1970); see also Note, Ordinances Restricting the Sale of "Communist Goods," 65 COLUM. L. REV. 310 (1965).
17. See, e.g., Richard B. Bilder, East-West Trade Boycotts: A Study in Private, Labor Union, State and Local Interference with Foreign Policy 118 U. PA. L. REV. 841, 882-84 (1970); see also Note, Ordinances Restricting the Sale of "Communist Goods," 65 COLUM. L. REV. 310 (1965).
18. See Bilder, supra note 11, at 882; see also LA. REV. STAT. ANN. § 33:4789 (West 1988) (authorizing local governments to pass communist goods ordinances providing for penalties of "a fine not in excess of five thousand dollars or imprisonment for not to exceed two years in the parish jail, or both a fine and imprisonment not exceeding the limits herein stated").
19. See Zschernig v. Miller, 389 U.S. 429 (1968).
20. See id. at 435.
21. See Clark v. Allen, 331 U.S. 503 (1947).
22. See Zschernig, 389 U.S. at 429.
23. See Eric L. Hirschhorn and Howard N. Fenton, III, States' Rights and the Antiboycott Provisions of the Export Administration Act, 20 COLUM. J. TRANSNAT'L L. 517, 522-26 (1981) (describing state law's designed to protect in-state residents from boycott-related discrimination).
24. See id. at 522-23.
25. 50 U.S.C. app. § 2407(c) (1994).
26. 50 U.S.C. app. § 2407(a)(1) (1994).
27. See Springfield Rare Coin Galleries, Inc. v. Johnson, 503 N.E.2d 300, 302 (111. 1986).
28. See id. at 307 (holding that the expression of disapproval of the policies of a foreign government is not a valid basis for a tax classification).
29. See New York Times Co. v. City of New York Comm'n on Human Rights, 361 N.E.2d 963 (N.Y. 1977).
30. See id. at 966.
31. See FLA. STAT. ANN. § 205.0532 (West Supp. 1998).
32. FLA. STAT. ANN. § 517.075(1) (West 1997).
33. See FLA. STAT. ANN. § 288.853(6) (West Supp. 1998).
34. See FLA. STAT. ANN. § 288.853 (3) (West Supp. 1998).
35. FLA. STAT. ANN. § 370.21 (3) (West 1997).
36. See Spiro, supra note 3, at 820.
37. See id. at 819-20 (discussing "Sullivan Principles" for doing business in South Africa); see also Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 TUL. L. REV. 469, 472 & n.18 (1987); Fenton, supra note 3, at 568-69. These measures are frequently referred to as "divestment" laws, but are more accurately described as selective investment laws since they include measures that require divestment of existing holdings as well as measures that merely prohibit future investment in the target country. See id. at 568.
38. See Fenton, supra note 3, at 568-69.
39. See id at 569.
40. See id.
41. See FLA. STAT. ANN. §§ 215.471-472 (West Supp. 1998).
42. SeeSpiro, supra note 3, at 821.
43. See Fenton, supra note 3, at 570.
44. See Schmahmann & Finch, supra note 1, at 179-83. As this article was going to print, the United States District Court for the District of Massachusetts issued an opinion holding that the Massachusetts Burma law violated the federal foreign affairs power. See National Foreign Trade Council v. Baker, CA No. 98-10757-JLT (D. Mass. Nov. 4, 1998). The district court's opinion did not address the First Amendment issues discussed in this article. Massachusetts Attorney General Scott Harshbarger has announced that Massachusetts will appeal the decision. BOSTON HERALD, Nov. 11 1998 available in 1998 WL 7360689. In addition to the federal litigation, the European Union and Japan have asserted that the Massachusetts law violates U.S. obligations under the World Trade Organization's Agreement on Government Procurement See EU, Japan Still Weighing Action on State's Burma Procurement Penalties, BNA INT'L TRADE DAILY, Jan. 13, 1998, at D8.
45. See African Fund Urges City Sanctions Against Nigerian Dictatorship, N.Y. MISTERDAM NEWS, May 31,1997, at 2.
46. See LA. REV. STAT. ANN. §§ 38.2212.2, 39.1594.2 (West 1989).
47. See Stephen D. Moore, Choices Few to Swiss Banks on War Claims, WALL ST. J., Aug. 14, 1998, at A12.
48. See QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 265 n.5 (1922).
49. See N.Y. CITY Res. 2197-A (May 14, 1997).
50. SeeS.J. Res. 15, 411th Sess. (Md. 1997).
51. See H.R. 5196, Jan. Sess. (R.I.1997).
52. U.S. CONST. art. I, § 8, cls. 1, 4, 10-13. In addition, Article I, Section 8 of the Constitution authorizes Congress to "regulate Commerce with foreign Nations."
53. U.S. CONST, art. II, § 2, cl. 1.
54. U.S. CONST, art. II, § 2, cl. 2.
55. Id.
56. U.S. CONST, art. II, § 3.
57. U.S. CONST, art I, § 10, els. 1-3.
58. THE FEDERALIST No. 32 (Alexander Hamilton).
59. See U.S. CONST, art. I, § 8, cl. 17.
60. See U.S. CONST, art. I, § 8, cl. 1; id. art. I, § 10, cl. 2.
61. THE FEDERALIST No. 32 (Alexander Hamilton) (emphasis in original).
62. Id. (quoting U.S. CONST, art I, § 8, cl. 4).
63. The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigour, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article . . . is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which . . . refutes every hypothesis to the contrary. THE FEDERALIST No. 32 (Alexander Hamilton).
64. See Clark v. Allen, 331 U.S. 503 (1947); see also LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 162 (1996) ("Until 1968, there was no hint of such a principle.").
65. 389 U.S. 429 (1968).
66. See id. at 430-31.
67. Id. at 432.
68. id. at 435.
69. Id. at 440. The Court in Zschernig purported only to strike down the Oregon statute as applied rather than on its face. See id. at 432-35 & n.5. The Court's determination that the statute was unconstitutional as applied is somewhat peculiar, given that the Court focused on how similar statutes had been applied in other states rather than the application of the Oregon statute at issue. Justice Douglas was perhaps reluctant to overrule his opinion twenty years earlier in Clark v. Allen, 331 U.S. 503 (1947). In Clark, the Court upheld a California reciprocity law similar to the law it struck down in Zschernig, rejecting a facial challenge to the law as improperly intruding on the federal power over foreign affairs as "farfetched," and noting that "[w]hat California has done will have some incidental or indirect effect in foreign countries. But that is true of many state laws which none would claim cross the forbidden line. Clark, 331 U.S. at 517.
70. Moreover, as Justice Harlan noted in his concurring opinion, Zschernig constituted a significant departure from precedent. Previously, the Court had repeatedly held that in the absence of federal preemption or an explicit constitutional prohibition, states were free to "legislate in areas of their traditional competence even though their statutes may have an incidental effect on foreign relations." Zschernig, 389 U.S. at 458-59 (citing Qarke v. Deckenbach, 274 U.S. 392 (1927) (upholding Cincinnati ordinance prohibiting the issuance of pool hall licenses to aliens)); see also Frick v. Webb, 263 U.S. 326 (1923) (sustaining California law prohibiting ineligible aliens from holding shares of stock in corporation owning agricultural land); Webb v. O'Brien, 263 U.S. 313 (1923) (upholding California law limiting ability of aliens to acquire real property); Terrace v. Thompson, 263 U.S. 197 (1923) (upholding Washington law prohibiting ownership of land by aliens who have not declared their intention to become U.S. citizens); Heim v. McCall, 239 U.S. 175 (1915) (upholding New York law prohibiting hiring of aliens for public works projects).
71. Cf. Roe v. Wade, 410 U.S. 113,129, 152-54 (1973) (discussing constitutional right of privacy); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) ("[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.").
72. See Henkin, supra note 58, at 164 n.* ("[Zschernig] would presumably condemn also 'sense resolutions' on foreign policy by state legislatures though such resolutions are not law and could not be invalidated, and state legislatures presumably cannot be prevented or enjoined from adopting them."). But see Boos v. Barry, 485 U.S. 312 (1988), discussed infra notes 238-247 and accompanying text
73. See Zschernig, 389 U.S. at 434-35, 443.
74. See id. at 431-32.
75. See Henkin, supra note 58, at 165 & n.** ("The Supreme Court . . . has not had occasion to return to Zschernig and the case remains a unique statement and a sole application of constitutional doctrine. One would be bold to predict that it has a future life; might it remain on the Supreme Court's pages, a relic of the Cold War?"); see also Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 865 (1997) ("[T]here are reasons to think that Zschernig's dormant foreign relations preemption retains little, if any validity.").
76. Schmahmann and Finch suggest that the Supremacy Clause itself is the source of the dormant foreign affairs power. Schmahmann & Finch, supra note 1, at 198-99. This argument, however, begs the question of what provision of the Constitution is the source of the federal power alleged to be supreme over inconsistent state measures. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 612-13 (holding that the Supremacy Clause is not a source of federal right, but rather provides for priority of federal law when it conflicts with state law).
77. 514 U.S. 549 (1995).
78. Id. at 552 (citations omitted).
79. See id at 561 n.3.
80. Id. at 566; see also id. at 580 ("[I]t is well established that education is a traditional concern of the States.").
81. 117 S. Ct. 2157 (1997).
82. See id.
83. 494 U.S. 872 (1990).
84. Id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)) (citations omitted).
85. See id. at 2164 ("The design of the Amendment and the text of §5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the states."). Justice Kennedy further observed that distinction between defining and enforcing due process is "apparent from the text of the Amendment" Id.
86. Id. at 2170.
87. 505 U.S. 144 (1992).
88. See id. at 188.
89. Id. at 176-77.
90. 117 S. Ct. 2365 (1997).
91. Id. at 2367.
92. See Printz, 117 S. Ct at 2383.
93. Id. (emphasis in original). The Court's position that the Tenth Amendment precludes Congress from using the federal regulatory power to target states provides a relatively clear limit on federal authority and thus should prove to be more enduring than its earlier attempt to revive the Tenth Amendment in National League of Cities v. Usery, 426 U.S. 833 (1976). In Usery, the Court suggested that the Tenth Amendment precludes the federal government from regulating states when they act to provide services "which the states have traditionally afforded their citizens." Id. at 851; see also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981). The Court subsequently found the "traditional governmental function" standard unworkable because of the difficulty in determining what government functions are "traditional," and overruled Usery in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-22 (2ded. 1988).
94. See supra notes 46-50 and accompanying text.
95. Even if the Court does not formally overrule Zschernig, it will likely read the case narrowly to exclude state and local resolutions and selective investment and purchasing laws that-unlike the escheat statute at issue in Zschernig - do not involve exercises of regulatory authority. See 10 Op. Off. Legal Counsel 49,63 (1986) ("[W]e do not think the [Zschernig] principle should be extended to state proprietorial action.").
96. See, e.g., Schmahmann & Finch, supra note 1, at 189-97; Fenton, supra note 3, at 585-88.
97. See TRIBE, supra note 87, § 6-3, § 6-4.
98. U.S. CONST, art. I, § 8, cl. 3.
99. See FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY AND WATTE, 12-13, 19 (1937). Madison did perceive the commerce clause as precluding, of its own force, state regulations that impinged on interstate commerce. See Letter from James Madison to J.C. Cabell (Feb. 13, 1829), reprinted in M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 478 (1911) (explaining that the commerce clause was "intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."). That view, however, was at odds with the general and politically acceptable understanding of the commerce clause, and "would hardly have been publicly avowed in support of the Constitution." FRANKFURTER, supra, at 19.
100. See FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY AND WATTE, 12-13, 19 (1937). Madison did perceive the commerce clause as precluding, of its own force, state regulations that impinged on interstate commerce. See Letter from James Madison to J.C. Cabell (Feb. 13, 1829), reprinted in M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 478 (1911) (explaining that the commerce clause was "intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."). That view, however, was at odds with the general and politically acceptable understanding of the commerce clause, and "would hardly have been publicly avowed in support of the Constitution." FRANKFURTER, supra, at 19.
101. THE FEDERALIST NO. 23 (Alexander Hamilton); see also supra notes 52-57 and accompanying text.
102. Article I, Section 10 of the Constitution does provide that "[n]o State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports . . . ." U.S. CONST, art. I, § 10, cl. 2. This limited preclusion suggests that all other state regulation and taxation affecting commerce is constitutionally permissible, unless preempted by Congress. See THE FEDERALIST No. 32 (Alexander Hamilton) (explaining that the Import-Export Clause "implies an admission that if it were not inserted the States would possess the power it excludes; and it implies a further admission that as to all other taxes, the authority of the States remains undiminished").
103. See supra note 56 and accompanying text Some early Supreme Court decisions did suggest that the federal government's commerce power was exclusive of any state regulation affecting commerce. See, e.g., Passenger Cases, 48 U.S. (7 How.) 283, 393-100 (1849) (reasoning that the Commerce Clause precludes concurrent state power to regulate commerce). The Court has long since rejected that view of the commerce power. See Southern Pac. Co. v. Arizona ex rel Sullivan, 325 U.S. 761, 766 (1945) ("Although the commerce clause conferred on the federal government power to regulate commerce, its possession of the power does not exclude all state power of regulation").
104. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 196-200 (1824) (striking down a New York law that prohibited federally licensed vessels from navigating New York waters as inconsistent with Congress's general commerce power); Willson v. Black-Bird Creek March Co., 27 U.S. (2 Pet.) 245, 252 (1829) (concluding that a Delaware statute authorizing the construction of a dam was not "repugnant to the power to regulate commerce in its dormant state").
105. See generally TRIBE, supra note 87, § 5-22; Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 569 DUKE L.J. 574-81 (1987).
106. See Pike v. Bruce Church, Inc., 397 U.S. 137,145 (1970) (finding state laws that explicitly discriminate against out-of-state commerce "virtually per se illegal"). But see Maine v. Taylor, 477 U.S. 131 (1986) (upholding Maine law prohibiting import of live baitfish).
107. Pike, 397 U.S. at 142 (citation omitted).
108. See, e.g., Schmahmann & Finch, supra note 1, at 189-98; Fenton, supra note 3, at 585-88.
109. 441 U.S. 434 (1979).
110. Id. at 436.
111. Id. at 449 (quoting Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976)). Michelin actually involved the Import-Export Clause, not the Commerce Clause.
112. As then Judge Cardozo observed in Berkey v. Third Ave. Ry. Co., "metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it" 155 N.E. 58, 61 (N.Y. 1926).
113. See New York v. United States, 505 U.S. 144, 171 (1992) ("While the Commerce Clause has long been understood to limit the States' ability to discriminate against interstate commerce . . . that limit may be lifted . . . by an expression of the 'unambiguous intent' of Congress.").
114. U.S. CONST, art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . ."). This provision requires congressional consent only when a compact is deemed so significant that it "encroach [es] upon or impair[s] the supremacy of the United States . . . ." Virginia v. Tennessee, 148 U.S. 503, 517 (1893). State and local government efforts "to educate, research, pass resolutions, and lobby on foreign-policy questions," however, do not implicate that Compacts Clause. Shuman, supra note 6, at 163.
115. See generally U.S. Senate Rejection of Treaties: A Brief Survey of Past Instances, 133 CONG. REC. S5688-1 (1987) (statement of Sen. B)Td).
116. Compare, e.g., 140 CONG. REC. E2385-02 (1994) (statement of Rep. Roemer supporting legislation implementing Uruguay Round Agreements), with 140 CONG. REC. E2385-03 (1994) (statement of Rep. Waxman opposing legislation implementing Uruguay Round Agreements).
117. With regard to the . . . argument, that the United States must speak with one voice, the reality is that America's foreign policy establishment has never spoken with one voice-and never will . . . . [E]ven within the executive branch very different voices have spoken. During the late 1980s, for example, U.S. negotiator Phillip Habib traveled to Central America and sought a negotiated settlement with the Sandinistas. At the same time, Assistant Secretary of State for Inter-American Affairs Elliot Abrams and National Security Council aide Oliver North were seeking to forcibly oust the Sandinistas from power. All the while, entourage after entourage of representatives and senators descended upon Central America expressing their own views about U.S. policy. Shuman, supra note 6, at 168.
118. "In one fashion or another, every Member of the current Court and a goodly number of our predecessors have at least recognized these problems, if not been troubled by them." Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 610-11 (1997) (Thomas, J., dissenting).
119. Last term in Camps Newfound/Owatonna, four Justices indicated a willingness either to abandon or severely limit application of the dormant commerce clause. Id. at 595-609 (Scalia, J., dissenting); id. at 609-40 (Thomas, J., dissenting).
120. See Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 80 (1993) (Scalia, J., concurring in part and concurring in the judgment): I have not hitherto had occasion to consider an asserted application of the negative Commerce Clause to commerce "with foreign Nations" - as opposed to commerce "among the several States" - but the basic point that the Commerce Clause is a power conferred upon Congress (and not a power denied to the States) obviously applies to all portions of the Clause.
121. See, e.g., Camps Newfound/Owatonna, 520 U.S. at 610 (Thomas, J., dissenting) ("The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application."); American Trucking Ass'ns v. Smith, 496 U.S. 167, 202 (1990) (Scalia, J., concurring) (arguing that dormant commerce clause is "irreconcilable with the constitutional text"); Tyler Pipe Indus, v. Washington State Dept. of Revenue, 483 U.S. 232, 265 (1987) (Scalia, J., concurring in part and dissenting in part) (finding the dormant commerce clause unjustified "by textual support or even coherent nontextual theory"); see also Redish & Nugent, supra note 98, at 571 ("[T]he simple fact is that there is no dormant commerce clause to be found within the text or textual structure of the Constitution.").
122. See, e.g., Camps Newfound/Owatonna, 520 U.S. at 618 (Thomas, J., dissenting) ("We have used the Clause to make policy-laden judgments that we are ill-equipped and arguably unauthorized to make."); Itel Containers, 507 U.S. at 80 (Scalia, J., concurring in part and concurring in the judgment) (dormant commerce clause analysis "ultimately asks courts to make policy judgments - essentially, whether nondiscriminatory state regulations of various sorts are 'worth' their effects upon interstate or foreign commerce"); American Trucking, 496 U.S. at 203 (Scalia, J., concurring) ("[O]ur exercise of the 'negative' Commerce Clause function has ultimately cast us in the essentially legislative role of weighing the imponderable - balancing the importance of the State's interest in this or that (an importance that different citizens would assess differently) against the degree of impairment of commerce."); see also Richard D. Friedman, Putting the Dormancy Doctrine Out of Its Misery, 12 CARDOZO L. REV. 1745 (1991) ("[T] here is no need for the courts to [determine, as a policy matter, which state laws impermissibly impede interstate commerce] and over the long run this function will be performed far better by the political branches.") ; Redish &: Nugent, supra note 98, at 581 (" [T] he Court, in testing state legislation, essentially makes what amounts to an intrinsically legislative determination as to whether a particular type of commerce requires exclusive federal regulation.").
123. See, e.g., Camps Newfound/Owatonna, 520 U.S. at 618 (Thomas, J., dissenting) ("We have used the Clause to make policy-laden judgments that we are ill-equipped and arguably unauthorized to make."); Itel Containers, 507 U.S. at 80 (Scalia, J., concurring in part and concurring in the judgment) (dormant commerce clause analysis "ultimately asks courts to make policy judgments - essentially, whether nondiscriminatory state regulations of various sorts are 'worth' their effects upon interstate or foreign commerce"); American Trucking, 496 U.S. at 203 (Scalia, J., concurring) ("[O]ur exercise of the 'negative' Commerce Clause function has ultimately cast us in the essentially legislative role of weighing the imponderable - balancing the importance of the State's interest in this or that (an importance that different citizens would assess differently) against the degree of impairment of commerce."); see also Richard D. Friedman, Putting the Dormancy Doctrine Out of Its Misery, 12 CARDOZO L. REV. 1745 (1991) ("[T] here is no need for the courts to [determine, as a policy matter, which state laws impermissibly impede interstate commerce] and over the long run this function will be performed far better by the political branches.") ; Redish &: Nugent, supra note 98, at 581 (" [T] he Court, in testing state legislation, essentially makes what amounts to an intrinsically legislative determination as to whether a particular type of commerce requires exclusive federal regulation.").
124. Even Justice Scalia, the doctrine's harshest critic on the Court, supports its continued application in certain cases out of respect for precedent I have previously recorded my view that the Commerce Clause contains no "negative" component, no self-operative prohibition upon the States' regulation of commerce . . . . On stare decisis grounds, however, I will enforce a self-executing, "negative" Commerce Clause in two circumstances: (1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court. Itel Containers, 507 U.S. at 78-79 (Scalia, J. concurring in part and concurring in the judgment) (citations omitted).
125. 426 U.S. 794 (1976).
126. Id. at 796-802.
127. See id. at 807-10.
128. Id. at 810. In decisions following Hughes, the Court has reiterated the notion that the dormant commerce clause does not limit the power of the states to act as market participants. See, e.g., Reeves, Inc. v. Stake, 447 U.S. 429, 436-37 (1980) ("[T]he 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"); id. at 437 ("[T]he commerce clause was di-rected, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity." (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 336 (1st ed. 1978))); see also White v. Massachusetts Council of Constr. Employers, 460 U.S. 204, 207 (1983) (holding that Boston's work force requirement favoring city residents did not violate the Commerce Clause to the extent the city acted as a market participant). Yet this explanation for the market participation doctrine is unsatisfying. As discussed above, the Framers did not intend that the Commerce Clause, in and of itself, limit any state action, regulatory or otherwise. See supra note 93 and accompanying text Thus, the market participation doctrine arguably can be understood as an attempt by the Court to limit the dormant commerce clause's intrusion on state sovereignty.
129. Reeves, 447 U.S. at 438 (citations and quotation marks omitted).
130. Id. at 439. The Court . . . heretofore has recognized that 'like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases'. . . . While acknowledging that there may De limits on this sweepingly phrased principle, we cannot ignore the similarities of private businesses and public entities when they function in the marketplace. Id. at 439 n.12 (quoting Perkins v. Lukens Steel Col., 310 U.S. 113, 127 (1940); White v. Massachusetts Council of Constr. Employers, 460 U.S. 204,207 n.3 (1983)); cf. Printz, 117 S. Ct. at 2383.
131. See supra notes 30-41 and accompanying text.
132. 467 U.S. 82 (1984).
133. See Schmahmann & Finch, supra note 1, at 193-94.
134. See Wunnicke, 467 U.S. at 95-99.
135. See 10 Op. Off. Legal Counsel 49, 57 (1986) (noting that the Wunnike plurality opinion does not constitute binding precedent).
136. The Supreme Court has recognized a similar distinction in its cases addressing the status of economic boycotts under the First Amendment, protecting politically motivated boycotts while permitting regulation of boycotts intended to obtain economic advantage. See infra notes 267-285 and accompanying text. The Wunnicke plurality also suggested that the market participation doctrine might have less force when foreign rather than interstate commerce is implicated. See Wunnicke, 467 U.S. at 100. As the Department of Justice's Office of Legal Counsel has noted, however, "the rationales underlying the market participation doctrine apply no less to the Foreign than to the interstate Commerce Clause." 10 Op. Off. Legal Counsel 49, 53 (1986).
137. A distinction must be drawn between state regulation of foreign commerce, and state participation in foreign commerce. The former activity is tightly proscribed by the negative implications of what might be called the foreign commerce clause. Thus, a state or local government that opposed the regime of apartheid in the Union of South Africa could not, absent congressional authorization, enact a measure denying South African companies the privilege of doing business within its jurisdiction; nor could a state or locality forbid its citizens and resident corporations from investing in or trading with multinational corporations which have affiliates or subsidiaries in South Africa. But under die Supreme Court's market participation exception to the commerce clause, a state would be free to pass laws forbidding investment of the state's pension funds in companies that do business with South Africa, or rules requiring that purchases of goods and services by and for the state government be made only from companies that have divested themselves of South African commercial involvement. See TRIBE, supra note 87, at 469.
138. 512 U.S. 298 (1994).
139. See id. at 308.
140. See id. at 302-03.
141. See id. at 323. The Senate similarly rejected a version of the United States/United Kingdom Tax Treaty that would have prohibited the use of worldwide combined reporting by the states. See id. at 326.
142. Id. at 328 (quoting Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983)).
143. Id. at 329.
144. id. at 332 (Scalia, J., concurring) (quoting Barclays, 512 U.S. 298, 326 (1994) (emphasis in original)). In addition to restricting the scope of the dormant commerce clause, the Court's decision in Barclays may also limit the situations where federal legislation will preempt state law. Federal legislation may preempt state law either explicitly or implicitly when the federal law and the state law directly conflict, or when the scope of the federal law indicates that Congress intended to occupy the field to the exclusion of state law. See Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). The Court has applied a strong presumption against implied preemption in areas (such as state procurement and investment decisions) that are traditionally committed to state authority. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 471 (1996) ("[We start] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))). The Maryland Court of Appeals, applying this presumption, held that a Baltimore ordinance requiring divestment of public employee pension funds from companies doing business in South Africa was not preempted by federal anti-apartheid legislation. See Board of Trustees of the Employees' Retirement Sys. v. Mayor of Baltimore City, 562 A.2d 720, 743-44 (Md. 1989). The Court's interpretation in Barclays of congressional silence as implicit consent should strengthen the presumption against implied preemption, rendering it less likely that a court would infer that federal law preempts a state or local selective investment or purchasing law in the absence of an explicit congressional statement of intent to preempt.
145. In the 1977 amendments to the Export Administration Act (EAA), Congress did preempt state laws that attempted to prohibit or regulate compliance with the Arab boycott of Israel. 50 U.S.C. app. § 2407(c); see also supra notes 19-20 and accompanying text The EAA amendments impose a federal ban on participation in boycotts "fostered or imposed by a foreign country" when the federal government has not imposed its own sanctions on the country. 50 U.S.C. app. § 2407(a). The compromise between pro-Israel groups and the business community that produced the federal ban precluded state and local governments from imposing additional liability for participation in foreign boycotts. See Fenton, supra note 3, at 581. The federal ban on participation in foreign boycotts includes a prohibition on furnishing information concerning business relationships with the country that is the target of the boycott. See 50 U.S.C. app. § 2407(a)(1)(D). The U.S. Court of Appeals for the Seventh Circuit has rejected a First Amendment challenge to this provision by companies that wanted to respond to boycott questionnaires issued by Arab countries. See Briggs &: Stratton Corp. v. Baldridge, 728 F.2d 915 (7th Cir. 1984). The Seventh Circuit held that the companies' interest in responding to the questionnaires was related solely to their desire to preserve their economic relationships with Arab countries, and thus involved mere "commercial speech" subject to limited protection under the First Amendment Id. at 917-18. However, no federal court has addressed whether the EAA can preclude politically motivated participation in a foreign boycott consistent with the Supreme Court's holding in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), discussed infra notes 267-276 and accompanying text.
146. See Bilder, supra note 6, at 882-83.
147. See supra notes 59-68 and accompanying text.
148. See supra notes 21-24 and accompanying text.
149. 132 CONG. REC. S23291 (1986) (statement of Sen. Kennedy).
150. Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat 1086, as amended by Pub. L. No. 99-631, 100 Stat. 3515 (1986), repealed by Pub. L. No. 103-149, 107 Stat. 1503 (1993).
151. Resolved . . . It is not the intent of the House of Representatives that the [federal anti-apartheid law] limit, preempt, or affect, in any fashion, the authority of any state or local government or the District of Columbia or any commonwealth, territory, or possession of the United States or political subdivision thereof to restrict or otherwise regulate any financial or commercial activity respecting South Africa. H.R. Res. 549,99th Cong. (1986); see also Laurence H. Tribe, Memorandumon the Nonpreemptive Effect of the Comprehensive Anti-Apartheid Act of 1986 Upon State and Local Measures, 132 CONG. REC. S23292. The resolution was passed after heated debate concerning the constitutionality of state and local foreign policy measures. See 132 CONG. REC. H23, 119-54 (1986).
152. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L. No. 104-208, § 570, 110 Stat. 3009-166 (1997). The federal law authorized the President to impose a limited ban on new investment in Burma. President Clinton exercised this authority on May 20, 1997. See Executive Order No. 13,047,62 Fed. Reg. 28,301 (1997).
153. See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1676 (1997).
154. See 144 CONG. REC. H7277 (1998).
155. See H.R. 2708, 105th Cong. (1997). Although the proposed Sanctions Reform Act does not refer to state or local measures, Congressman Hamilton submitted remarks in the Congressional Record noting with concern that "roughly 20 States and localities have adopted laws prohibiting government commercial dealings with United States or foreign companies that do business with countries that have poor human rights records. . . . [S] ome of [these] State and local sanctions raise difficult questions concerning the constitutional authority to conduct U.S. trade and foreign policy." 143 CONG. REC. E2080 (1997) (statement of Rep. Hamilton). At a press conference announcing the introduction of the bill, however, Hamilton acknowledged that it did not apply to state and local sanctions. USA(White star sign)ENGAGE Hamilton-Crane-Lugar Sanctions Reform Press Conference (visited Oct 3, 1998) .
156. See Fenton, supra note 3, at 591 ("The political pressures that result in these local laws will also discourage Congressional action to preempt such laws in the near term. The constituent groups and popular appeal propelling these laws through city councils and state legislatures do not go unnoted by representatives and senators representing those jurisdictions."); see also Bilder, supra note 6, at 823 (noting that "state and local involvement in foreign affairs . . . has occasioned little reaction from Congress or the Executive").
157. Even some regulatory measures may be permissible under the balancing standard for indirect burdens on commerce, if they do not impose a significant burden on commerce but merely require the disclosure of information. See supra note 100 and accompanying text; see, e.g., supra note 26 and accompanying text (discussing Florida law requiring issuers of securities to disclose ties with Cuba).
158. 32 U.S. (7 Pet.) 243 (1833).
159. Id. at 249-50. Chief Justice Marshall also concluded that the enumeration of certain limits on the power of state governments contained in Article I, Section 10 of the Constitution indicated that if the Framers had intended to apply the obligations of the Bill of Rights against the states, "they would have declared this purpose in plain and intelligible language." Id. at 249.
160. See Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1202 (1992) ("[T]he Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government - not just for the sake of individual liberty, but also to serve the cause of states rights.").
161. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) ("Whether or not a particular guarantee is 'purely personal' or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.").
162. U.S. CONST, amend. IX.
163. U.S. CONST, amend. II; see also United States v. Miller, 307 U.S. 174, 178 (1939) (asserting that the Second Amendment must be interpreted consistent with its purpose of preserving state militias).
164. See United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984) ("[T]He reference to 'private property' in the Takings Clause of the Fifth Amendment . . . encompass [es] the property of state and local governments when it is condemned by the United States.").
165. U.S. CONST, amend. X.
166. U.S. CONST, amend. I (emphasis added). By referring at the outset to Congress, the First Amendment begins a theme that runs as a leitmotif throughout the original Bill of Rights, that of federalism. When read in conjunction with other provisions, in particular the Tenth Amendment, the First Amendment signals an intention to give Congress no enumerated power over matters such as religion and speech, reserving the same "to the States respectively, or to the people." Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. REV. 1106, 1111-12 (1994) (emphasis in original).
167. U.S. CONST, amend. I (emphasis added). By referring at the outset to Congress, the First Amendment begins a theme that runs as a leitmotif throughout the original Bill of Rights, that of federalism. When read in conjunction with other provisions, in particular the Tenth Amendment, the First Amendment signals an intention to give Congress no enumerated power over matters such as religion and speech, reserving the same "to the States respectively, or to the people." Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. REV. 1106, 1111-12 (1994) (emphasis in original).
168. See Note, Rethinking the Incorporation of the Establishment Clause: A
169. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1186-88 (1996).
170. See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 197-98 (1985).
171. Free speech as we understand the term had some basis in everyday experience, but remained nearly unknown to legal or constitutional history and to libertarian thought on either side of the Atlantic before 1776. In that year Pennsylvania's Declaration of Rights elevated freedom of speech to constitutional status, but of the original thirteen states only Pennsylvania acted to protect free speech. The First Amendment's guarantee that freedom of speech shall not be abridged was therefore almost without precedent. Id. at 5.
172. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1148-49 (1991) (citing E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 208-19 (1957)).
173. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1148-49 (1991) (citing E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 208-19 (1957)).
174. See generally JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST. COMMENTARY. 315 (1994).
175. See generally JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST. COMMENTARY. 315 (1994).
176. 1 Stat 570-71 (1798) (expired 1801).
177. See 1 Stat 596 (1798) (expired 1801).
178. See SMITH, supra note 164, at 187.
179. See Lash, supra note 158, at 1112 ("As did Jefferson, Madison believed the right violated [by the Alien and Sedition Acts] was that of the states, not of 'the people'"); see generally Amar, supra note 163 (the Alien and Sedition Laws were seen as violating both the First and the Tenth Amendments).
180. Ky. Res. 3 (1798), reprinted in 5 THE FOUNDERS' CONSTITUTION 131, 132 (1987).
181. Va Res.(1798), reprinted in 5 THE FOUNDERS' CONSTITUTION 135, 136 (1987).
182. See Akhil Reed Amar, Some New World Lessons For the Old World, 58 U. CHI. L. REV. 483, 504 (1991) ("[S]tate governments in 1798-99 played a role similar to that of the institutional press or the opposition party today: monitoring the conduct of officials in power, and coordinating opposition to central policies deemed undesirable. Indeed, die strong First Amendment protection today enjoyed by the American press is in part a legacy of the success of state legislative action in 1798-99 . . . ."); see also Moore, supra note 164, at 319 (Jefferson "assumed that institutions of state government were accountable to the states' citizens, had primary responsibility to secure rights over which the federal government had no power, and were authorized to voice the people's collective determinations"); id. at 332-33 (stating that Virginia and Kentucky Resolutions asserted rights of both the states and "the people" to freedom of political expression and participation).
183. A majority of the states objected to the Virginia and Kentucky Resolutions. Their objections, however, were primarily directed at Jefferson s claim that the states had the power to determine the constitutionality of federal legislation. See 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 532-39 (reprint ed. 1987); Moore, supra note 164, at 328.
184. See Moore, supra note 164, at 322 ("The Resolutions of 1798 were a type of communication, or petition.").
185. Ky. Res. 8-9 (1798), reprinted in 5 THE FOUNDER'S CONSTITUTION 131, 133 (1987).
186. Va. Res. (1798), reprinted in 5 THE FOUNDER'S CONSTITUTION 135, 136 (1987).
187. See SMITH, supra note 164, at 431-33; Akhil Reed Amar, Kentucky and the Constitution, 85 KY. L.J. 1, 3 (1997). The Supreme Court eventually endorsed the "broad consensus" that the Sedition Act violated the First Amendment in New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964).
188. See SMITH, supra note 164, at 431-33; Akhil Reed Amar, Kentucky and the Constitution, 85 KY. L.J. 1, 3 (1997). The Supreme Court eventually endorsed the "broad consensus" that the Sedition Act violated the First Amendment in New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964).
189. New York Times, 376 U.S. at 273.
190. See James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287, 330-35 (1990).
191. See 5 Geo. 3, ch. 12 (1765); Pope, supra note 178, at 330-31. The Stamp Act boycotts were originally organized by merchants in New York. See CHARLES MCLEAN ANDREWS, THE BOSTON MERCHANTS AND THE NON-IMPORTATION MOVEMENT 40-41 (1968).
192. See 5 Geo. 3, ch. 12 (1765); Pope, supra note 178, at 330-31. The Stamp Act boycotts were originally organized by merchants in New York. See CHARLES MCLEAN ANDREWS, THE BOSTON MERCHANTS AND THE NON-IMPORTATION MOVEMENT 40-41 (1968).
193. See 6 Geo. 3, ch. 11 (1766).
194. See ANDREWS, supra note 179, at 17, 43; Robert Middlekauff, The Glorious Cause - The American Revolution 1763-1789, in 2 THE OXFORD HISTORY OF THE UNITED STATES 179-88 (C. Vann Woodward ed., 1982).
195. See ANDREWS, supra note 179, at 17, 43; Robert Middlekauff, The Glorious Cause - The American Revolution 1763-1789, in 2 THE OXFORD HISTORY OF THE UNITED STATES 179-88 (C. Vann Woodward ed., 1982).
196. See ANDREWS, supra note 179, at 33-34; ARTHUR MEIER SCHLESINGER, THE COLONIAL MERCHANTS AND THE AMERICAN REVOLUTION, 1763-1776, at 105-14 (1918). Town meetings, the basic units of local government, provided the main organizational form for the movement in New England . . . . Towns outside New England, which were not formally organized on the town meeting model, emulated the New England example by calling meetings of die whole people. When it was necessary to coordinate action at the county level, local meetings selected and sent delegates to extralegal county and province "conventions." Pope, supra note 178, at 336; see also 1 FRANCES NEWTON THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 46-48 (1901) (discussing the role of town meetings in organizing opposition to the Stamp Acts).
197. See ANDREWS, supra note 179, at 33-34; ARTHUR MEIER SCHLESINGER, THE COLONIAL MERCHANTS AND THE AMERICAN REVOLUTION, 1763-1776, at 105-14 (1918). Town meetings, the basic units of local government, provided the main organizational form for the movement in New England . . . . Towns outside New England, which were not formally organized on the town meeting model, emulated the New England example by calling meetings of die whole people. When it was necessary to coordinate action at the county level, local meetings selected and sent delegates to extralegal county and province "conventions." Pope, supra note 178, at 336; see also 1 FRANCES NEWTON THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 46-48 (1901) (discussing the role of town meetings in organizing opposition to the Stamp Acts).
198. See ANDREWS, supra note 179, at 33-34; ARTHUR MEIER SCHLESINGER, THE COLONIAL MERCHANTS AND THE AMERICAN REVOLUTION, 1763-1776, at 105-14 (1918). Town meetings, the basic units of local government, provided the main organizational form for the movement in New England . . . . Towns outside New England, which were not formally organized on the town meeting model, emulated the New England example by calling meetings of die whole people. When it was necessary to coordinate action at the county level, local meetings selected and sent delegates to extralegal county and province "conventions." Pope, supra note 178, at 336; see also 1 FRANCES NEWTON THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 46-48 (1901) (discussing the role of town meetings in organizing opposition to the Stamp Acts).
199. See ANDREWS, supra note 179, at 33-34; ARTHUR MEIER SCHLESINGER, THE COLONIAL MERCHANTS AND THE AMERICAN REVOLUTION, 1763-1776, at 105-14 (1918). Town meetings, the basic units of local government, provided the main organizational form for the movement in New England . . . . Towns outside New England, which were not formally organized on the town meeting model, emulated the New England example by calling meetings of die whole people. When it was necessary to coordinate action at the county level, local meetings selected and sent delegates to extralegal county and province "conventions." Pope, supra note 178, at 336; see also 1 FRANCES NEWTON THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 46-48 (1901) (discussing the role of town meetings in organizing opposition to the Stamp Acts).
200. See ANDREWS, supra note 179, at 33-34; SCHLESINGER, supra note 182, at 106-07; CARL UBBELOHDE, THE VICE-ADMIRALTY COURTS AND THE AMERICAN REVOLUTION 115 (1960).
201. See ANDREWS, supra note 179, at 33-34; SCHLESINGER, supra note 182, at 106-07; CARL UBBELOHDE, THE VICE-ADMIRALTY COURTS AND THE AMERICAN REVOLUTION 115 (1960).
202. See ANDREWS, supra note 179, at 34; SCHLESINGER, supra note 182, at 107.
203. See ANDREWS, supra note 179, at 34 &n.4; SCHLESINGER, supra note 182, at 110-12.
204. See SCHLESINGER, supra note 182, at 111; ANDREWS supra note 179, at 37.
205. See ANDREWS, supra note 179, at 55.
206. See id. at 57.
207. See id. at 77; UBBELOHDE, supra note 183, at 180.
208. See UBBELOHDE, supranote 183, at 181.
209. See SCHLESINGER, supra note 182, at 313.
210. See id. at 314.
211. See NEIL R. STOUT, THE PERFECT CRISIS: THE BEGINNING OF THE REVOLUTIONARY WAR 121 (1976).
212. I JOURNALS OF THE CONTINENTAL CONGRESS 1774-89, at 76 (1904).
213. Id. at 79.
214. See SCHLESINGER, supra note 182, at 440-447.
215. See Pope, supra note 178, at 331-33; ANDREWS, supra note 179, at 46 n.1 (quoting Gloucester, Massachusetts nonimportation agreement of March 16, 1768: "We whose names are underwritten are of opinion that every legal measure for freeing the country from the present embarrassments should be adopted, and among others the stopping the importation of goods from Great Britain."); id. at 54-55 (asserting of legality in Aug. 29, 1769 Newcastle, Delaware nonimportation compact).
216. Pope, supra note 178, at 333 (quoting Letter from Christopher Gadsen to Peter Timothy (Oct. 26, 1769), reprinted in LETTERS OF FREEMAN, ETC.: ESSAYS ON THE NONIMPORTATION MOVEMENTIN SOUTH CAROLINA 57 (W. Drayton ed. 1771) (R. Weir ed. 1977)).
217. Pope, supra note 178, at 333 (quoting Letter from Christopher Gadsen to Peter Timothy (Oct. 26, 1769), reprinted in LETTERS OF FREEMAN, ETC.: ESSAYS ON THE NONIMPORTATION MOVEMENTIN SOUTH CAROLINA 57 (W. Drayton ed. 1771) (R. Weir ed. 1977)).
218. The idea that certain fundamental rights could not be ceded away . . . colored the American view of fundamental law. Fundamental rights were God-given, and were rights "which no creature can give, or hath a right to take away." They were, in the language of the Declaration of Independence, "inalienable." Legislators could no more rewrite these laws of nature than they could the laws of physics. Suzanna Sherry, The Founders'Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1132 (1987).
219. I JOURNALS OF THE CONTINENTAL CONGRESS 1774-89, supra note 194, at 70.
220. See Pope, supra note 178, at 330-35 (discussing the relationship between right of assembly and nonimportation boycotts).
221. I JOURNALS OF THE CONTINENTAL CONGRESS 1774-89, supra note 194, at 76.
222. See id. at 75-76.
223. See generally TRIBE, supra note 87, § 11-2.
224. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 77 (1965) ("The unabridged freedom of public discussion is the rock on which our government stands."). But see TRIBE, supra note 87, § 12-1 (arguing that free speech is not only a means of preserving effective self-government, but also is "an end in itself, an expression of the sort of society we wish to become and the sort of persons we wish to be").
225. See United States v. White, 322 U.S. 694, 698-701 (1944) (privilege against selfincrimination applies only to natural persons).
226. See First Nat'1. Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
227. SeeNAACP v. Button, 371 U.S. 415, 428-29 (1963); Haitian Refugee Ctr. v. Baker, 789 F. Supp. 1552, 1557 n.2, 1558-62 (S.D. Fla. 1991), remanded on other grounds, 949 F.2d 1109 (11th Cir. 1991).
228. See Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 474 (D.C. Fla. 1980), modified on other grounds, 676 F.2d 1023 (5th Cir. 1982).
229. See Pacific Gas & Elec. Co. v. Public Utilities Comm'n, 475 U.S. 1, 8 (1986) (plurality opinion).
230. See San Francisco County Democratic Cent Comm. v. March Fong Eu, 826 F.2d 814, 825-26 (1987), aff'd, 489 U.S. 214 (1989).
231. 435 U.S. 765 (1978).
232. Id. at 767.
233. See id. at 776-78.
234. Id. at 776.
235. Id. at 777; see also id. at 783 (noting that even commercial speech is protected under the First Amendment "not so much because it pertains to the seller's business as because it furthers the societal interest in the 'free flow of commercial information'") (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976)).
236. See City of Madison Joint Sch. Dist No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 n.7 (1976) ("We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees.").
237. See, e.g., Student Gov't Ass'n v. Board of Trustees, 868 F.2d 473, 481 (1st Cir. 1989) (citing no authority for the assertion that "a state entity. . . has no First Amendment rights.").
238. In Anderson v. City of Boston, 380 N.E.2d 628, 635 (Mass. 1978), appeal dismissed on jurisdictional grounds, 439 U.S. 1060 (1979), the Massachusetts Supreme Court avoided deciding whether the expenditure of funds by the City of Boston to lobby in support of a referendum to amend the state constitution was an exercise of free speech protected under the First Amendment. The court indicated that even assuming protected speech was involved, Massachusetts law prohibited the appropriation of funds for the purpose of influencing the result of a referendum. See id. at 633-35. The court held that this prohibition survived strict scrutiny because it advanced the government's substantial interest in promoting fair elections. See id. at 638-39. The Anderson court's opinion stressed the particular problems caused by municipal expressions intended to influence the results of a specific referendum. See id. at 638-39 & n.16. State and local government advocacy regarding elections or referenda presents a potential for corruption of the political process that does not exist with the state and local measures discussed in this Article. See Note, The Constitutionality of Municipal Advocacy in Statewide Referendum Campaigns, 93 HARV. L. REV. 535 (1980); see also Stern v. Kramarsky, 375 N.Y.S.2d 235 (Sup. Ct 1975) (rejecting the argument that rights of freedom of speech and association protect a state agency's campaign in support of a proposed Equal Rights Amendment to the constitution of the State of New York).
239. In Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm'n, 412 U.S. 94, 139 (1973), the Court held that federally licensed radio and television broadcasters were not obligated under the First Amendment to accept editorial advertising on public issues. In his concurring opinion, Justice Stewart observed that "[t]he First Amendment protects the press from governmental interference; it confers no analogous protection on the government" Id. at 139 (Stewart, J., concurring) (emphasis in original). Justice Stewart's concurrence is the genesis of language in several federal circuit court opinions suggesting that states do not have free speech rights under the First Amendment See Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033, 1038 (5th Cir. 1982) (citing Columbia Broad. Sys., 412 U.S. at 139 & n.7 (Stewart, J., concurring)); Warner Cable Communications Sys., Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990) (citing Muir, 688 F.2d at 1038); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) (citing Columbia Broad. Sys., 412 U.S. at 139 & n.7 (Stewart, J., concurring)); Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989) (citing Muir, 688 F.2d at 1044).
240. 710 F. Supp. 1387 (E.D.N.Y. 1989).
241. See id. at 1390-91.
242. Id. at 1390 (citing First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-84 (1978)).
243. 34 Cal. Rptr. 2d 188 (1994).
244. See id. at 197-198.
245. The Supreme Court first recognized the First Amendment as a source of limited protection from defamation in the context of the alleged defamation of a public official by the press. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that a public official may not recover for defamation for false statements related to official conduct "unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whetherh was false or not"). The Court subsequently extended its holding in New York Times to cover cases where the plaintiff is not a public official, but rather a "public figure," i.e., a private party who "achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts," or who becomes a public figure with regard to a specific matter of public controversy. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).
246. Nadel, 34 Cal. Rptr. 2d at 197.
247. 80 F.3d 186 (7th Cir. 1996).
248. Id. at 193.
249. See id.
250. See id. at 193-94.
251. Resolutions . . . seem intended primarily to raise public consciousness, stimulate public discussion, and persuade or influence the federal government to consider or reexamine particular policies. If carried on by private citizens or groups, such activities would be protected by First Amendment guarantees of freedom of speech and, also, perhaps, of 'the right of the people peaceably to assemble, and to petition for redress of grievances.' It is unclear whether First Amendment protections of freedom of speech and petition in terms extend to state and local governments or agencies, or their officials when speaking or acting in an official capacity. However, such activities arguably fall within the purpose and spirit of these fundamental rights and the courts are likely to find a basis for extending them some protection. Bilder, supra note 6, at 826-27.
252. Nor does the First Amendment itself limit the ability of a government to promote particular ideas or points of view that may not be universally held. See Rust v. Sullivan, 500 U.S. 173, 194 (1991) ("When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles . . . it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.").
253. See New York v. United States, 505 U.S. 144, 156 (1992) ("Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.").
254. See Boos v. Barry, 485 U.S. 312, 324 (1983) (quoting Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 45 (1983)).
255. Meyer v. Grant, 486 U.S. 414, 425 (1988); see also Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984) ("Only rarely are statutes sustained in the face of strict scrutiny. . . . [S]trict-scrutiny review is 'strict' in theory but usually 'fatal' in fact.") (citing Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972)).
256. Meyer v. Grant, 486 U.S. 414, 425 (1988); see also Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984) ("Only rarely are statutes sustained in the face of strict scrutiny. . . . [S]trict-scrutiny review is 'strict' in theory but usually 'fatal' in fact.") (citing Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972)).
257. 485 U.S. at 315.
258. Id.
259. Id. at 320-21.
260. Id at 321.
261. See also id. at 334 ("Whatever 'secondary effects' means . . . it cannot include listeners' reactions to speech.") (Brennan,J., concurring in part and concurring in the judgment).
262. See id. at 316 (stating that Congress enacted the law pursuant to its authority under Article I, § 8, cl. 10 to "define and punish . . . Offenses against the Law of Nations").
263. Id. at 324 (citations omitted).
264. Whatever authority the Court's decision in Zschernig retains, Boos seems to eviscerate its rationale regarding avoiding "embarrassment" of U.S. foreign policy to the extent that Zschernig applies to activity protected under the First Amendment. See supra notes 62-63 and accompanying text.
265. See Boss, 485 U.S. at 324.
266. Id. at 324-25.
267. 385 U.S. 116 (1966).
268. Id. at 135-137 (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).
269. Much of this language is taken from the provision struck down by the Court in Boos. See Boos, 485 U.S. at 316.
270. See supra notes 248-249 and accompanying text
271. See supra notes 213-217 and accompanying text
272. Moreover, any attempt to enforce such a prohibition against individual state legislators would be inconsistent with not only the First Amendment, but also the doctrine of legislative immunity, and thus "violate the 'public good' by interfering with the rights of the people to representation in the democratic process." Spallone v. United States, 493 U.S. 265, 279 (1990). The tradition of legislative "speech and debate" immunity dates back to the English Bill of Rights of 1689, 1 W. &: M., Sess. 2, cl. 2, see United States v. Johnson, 383 U.S. 169, 177 (1966), and provides the foundation for the broader freedoms guaranteed under the First Amendment, see Amar, supra note 163, at 1151.
273. One commentator argues that the First Amendment's protection also should extend to regulatory foreign policy measures by state and local governments. See supra note 6 (discussing Andrea L. McArdle, In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policymaking, 62 TEMP. L REV. 813, 845 (1989)). Regulatory authority, however, is a form of power enjoyed exclusively by governments; unlike selective purchasing laws, there is no private analogue to regulatory measures that the Supreme Court has recognized as entitled to First Amendment protection. In addition, if the Court held that the First Amendment protected regulatory measures by state and local governments, it would be difficult to limit this exception to laws implicating foreign affairs, since every regulatory measure arguably contains an expressive element in that it reflects the policy preferences of the legislative body enacting it. See McArdle, supra note 6, at 846 ("[T]he implications of the argument developed here are virtually limitless for local participation in the craning of national policy."). Thus, extension of the First Amendment to cover regulatory actions by state and local governments seems implausible. In fact, at least one regulatory foreign policy measure by a local government - New York City's attempt to prohibit the New York Times from publishing employment adds for jobs in South Africa - arguably violated the First Amendment. See New York Times Co. v. City of New York Comm'n, 361 N.E.2d at 969 (declining to decide whether publication ban violated First Amendment).
274. See ROBERT MIDDLEKAUFF, THE GLORIOUS CAUSE: THE AMERICAN REVOLUTION, 1763-1789 (1982).
275. PETER SHAW, AMERICAN PATRIOTS AND THE RITUALS OF REVOLUTION 162 (1981); see also MIDDLEKAUFF, supra note 255, at 180.
276. I JOURNALS OF THE CONTINENTAL CONGRESS 1774-89, at 78 (1904).
277. See id. at 77.
278. See I JOURNALS OF THE CONTINENTAL CONGRESS 1774-89, at 77-78 (1904); Pope, supra note 178, at 331 (noting that "boycott violators were themselves boycotted, often with devastating effect").
279. See MIDDLEKAUFF, supra note 257, at 1763-89.
280. 620 F.2d 1301 (8th Cir. 1980).
281. See id. at 1302-03. NOW's boycott was directed against states that had yet to ratify the proposed ERA. NOW was aware that such a boycott would work against the public's economic interests; NOW was hopeful that the public's interest would suffer to the extent that the public would be persuaded that ratification of the ERA was 'desirable'; NOW wanted the public to influence the legislature to ratify the ERA; NOW operated on the presumption that legislators act with regard for the public interest," Id. at 1313n.12.
282. See id. at 1304-16.
283. See id. at 1316-17.
284. See id. at 1319.
285. Id. at 1312-13. The court's decision was largely based on the Noerr-Pennington doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1911); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965). Under the Noerr-Pennington doctrine, attempts to influence the passage of legislation fall outside the scope of the Sherman Antitrust Act. The Court in Noerr found it unnecessary to reach the First Amendment issue, see Noerr, 365 U.S. at 132 n.6, but noted that a contrary construction "would raise important constitutional questions," id. at 138.
286. 458 U.S. 886 (1982).
287. See id. at 889.
288. See id. at 889-896.
289. id. at 907.
290. See id. at 912-13; see also Federal Trade Comm'n v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990) (rejecting a First Amendment challenge to a Federal Trade Commission decision that lawyers violated antitrust laws by organizing a boycott to force an increase in the amount of compensation they received for their services).
291. Claiborne, 458 U.S. at 912-15.
292. Id. at 915 (quoting Henry v. First Nat'l Bank, 595 F.2d 291, 303 (5th Cir. 1979)).
293. See id. at 914-15.
294. Id. at 914.
295. Id. at 911 (citing Thomas v. Collins, 323 U.S. 516, 530 (1945)).
296. See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (holding unconstitutional compelled support of school employees union).
297. see id.
298. See Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that a state bar association may not fund ideological activities unrelated to its core purpose with mandatory dues).
299. See supra note 275 and accompanying text.
300. Black's Law Dictionary defines the term "consumer boycott" as a "[p]ractice whereby consumers (i.e. customers) refrain from purchasing a particular product in protest of excessive price, offensive actions of manufacturer or producer, etc., or refrain from trading with particular business for similar reasons." BLACK'S LAW DICTIONARY 187 (5th ed. 1983).
301. Reeves, Inc. v. Stake, 447 U.S. 429, 439 (1980); see also supra notes 121-122 and accompanying text.
302. See supra text accompanying notes 267-276.
303. See Claiborne, 458 U.S. at 912 (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (holding application of Missouri statute prohibiting restraints of trade to ice peddlers union picketing warehouse to prevent sales to non-union dealers did not violate free speech rights of union members)); National Labor Relations Bd. v. Retail Store Employees, 447 U.S. 607 (1980) (upholding prohibition on secondary picketing under National Labor Relations Act); National Soc'y of Prof. Eng'rs v. United States, 435 U.S. 679 (1978) (upholding against First Amendment challenge determination that association of professional engineers canon of ethics prohibiting competitive bidding constituted an illegal restraint of trade in violation of the Sherman Antitrust Act). The Court in Claiborne also cited a decision in which it had upheld the prohibition of politically motivated secondary activity by a labor union. See Claiborne, 458 U.S. at 912 (citing International Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212 (1982)). In Allied International, decided earlier in the same term as Claiborne, the Court held that a longshoremen's union violated the National Labor Relations Act (NLRA) prohibition on secondary boycotts by refusing to unload cargo ships from the Soviet Union in protest of the Soviet invasion of Afghanistan. The Court rejected the union's claim that its conduct was protected under the First Amendment because of its political motive, relying on previous decisions such as Retail Store Employees, in which it had dismissed assertions that the NLRA's prohibition on secondary picketing violated the First Amendment See Allied Int'l, 456 U.S. at 226-27. Arguably, the disparate treatment of politically motivated boycotts in Claiborne and Allied International resulted primarily from the Court's traditional hostility to First Amendment claims brought by labor unions. See Thomas C. Kohler, Setting the Conditions for Self-Rule: Unions, Associations, Our First Amendment Disclosure and the Problem of Debartolo, 1990 WIS. L. REV. 149, 166-69. The Court subsequently attempted to harmonize the two decisions within the rule announced in Claiborne by suggesting (inaccurately) that Allied International involved an economic rather than political boycott. See Federal Trade Comm'n v. Superior Ct Trial Lawyers Ass'n, 493 U.S. 411, 428 & n.12 (1990).
304. Claiborne, 458 U.S. at 913 (citations omitted).
305. The Court noted that it had previously expressed skepticism that the State of Alabama could prohibit a voluntary boycott of the Montgomery bus system intended to protest racial segregation. See Claiborne, 458 U.S. at 914 n.48 (quoting NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964)).
306. See id. at 891-93.
307. See, e.g., Schmahmann & Finch, supra note 1, at 179 (asserting that state and local measures result in a "failure to 'speak with one voice' on international issues"); Fenton, supra note 3, at 579 (stating that state and local foreign policy initiatives may "communicate messages inconsistent with federal policies or laws"); Bilder, supra note 6, at 827 (asserting that state and local measures prevent the nation from "speak[ing] with one voice" and may "embarrass our foreign relations by causing offense or injury to foreign nations. . . .").
308. 475 U.S. 282 (1986).
309. See id. at 291; Schmahmann & Finch, supra note 1, at 185-86; Fenton, supra note 3, at 584.
310. See Gould, 475 U.S. at 290.
311. Id.
312. Congress may, in contrast, attach conditions to federal funds disbursed to the states, subject to certain limitations. See South Dakota v. Dole, 483 U.S. 203, 206-08 (1987) (discussing four general restrictions on congressional spending power).
313. See Gould, 475 U.S. at 290 (citing Elrod v. Burns, 427 U.S. 347 (1976), and Perry v. Sindermann, 408 U.S. 593 (1972)).
314. See Elrod, 427 U.S. at 372-73 (holding a county's attempt to condition employment in sheriffs office on affiliation with the Democratic Party violated the First and Fourteenth Amendments); Perry, 408 U.S. at 602-03 (holding that the dismissal without a hearing of a state junior college professor, allegedly based on his criticism of the college administration, violated the Fourteenth Amendment guarantee of procedural due process).
315. See supra note 122 and accompanying text. State and local boycotts are not distinguishable from private boycotts on the grounds that they have greater market impact. Private boycotts, in fact, may have substantially greater market impact that selective investment and purchasing laws. The private consumer boycott of Nestlé launched in protest of its marketing of infant formula in developing countries is estimated to have cost the company five billion dollars. See Nancy Ellen Zelman, The Nestlé Infant Formula Controversy: Restricting the Marketing Practices of Multinational Corporations in the Third World, 3 TRANSNAT'L LAW. 697, 735 n.196 (1990) (citing Carol-Linnea Salmon, Milking Deadly Dollars From the Third World, BUS. & SOC'Y. REV., Winter 1989, at 47). Greenpeace has estimated that its boycott against the Norwegian whaling industry has cost Norway approximately $60 million. See Martha Howton, International Regulation of Commercial Whaling: The Consequences of Norway's Decision to Hunt the Minke Whale, 18 HASTINGS INT'L & COMP. L. REV. 175, 191-92 & n.152 (1994) (citing Whaling Cost Norway $60 Million in Lost Exports - Greenpeace, REUTER EUR. BUS. REF., Feb. 22, 1994, available in LEXIS, Europe Library, Reueub File).
316. See supra note 122 and accompanying text. State and local boycotts are not distinguishable from private boycotts on the grounds that they have greater market impact. Private boycotts, in fact, may have substantially greater market impact that selective investment and purchasing laws. The private consumer boycott of Nestlé launched in protest of its marketing of infant formula in developing countries is estimated to have cost the company five billion dollars. See Nancy Ellen Zelman, The Nestlé Infant Formula Controversy: Restricting the Marketing Practices of Multinational Corporations in the Third World, 3 TRANSNAT'L LAW. 697, 735 n.196 (1990) (citing Carol-Linnea Salmon, Milking Deadly Dollars From the Third World, BUS. & SOC'Y. REV., Winter 1989, at 47). Greenpeace has estimated that its boycott against the Norwegian whaling industry has cost Norway approximately $60 million. See Martha Howton, International Regulation of Commercial Whaling: The Consequences of Norway's Decision to Hunt the Minke Whale, 18 HASTINGS INT'L & COMP. L. REV. 175, 191-92 & n.152 (1994) (citing Whaling Cost Norway $60 Million in Lost Exports - Greenpeace, REUTER EUR. BUS. REF., Feb. 22, 1994, available in LEXIS, Europe Library, Reueub File).
317. See supra note 122 and accompanying text. State and local boycotts are not distinguishable from private boycotts on the grounds that they have greater market impact. Private boycotts, in fact, may have substantially greater market impact that selective investment and purchasing laws. The private consumer boycott of Nestlé launched in protest of its marketing of infant formula in developing countries is estimated to have cost the company five billion dollars. See Nancy Ellen Zelman, The Nestlé Infant Formula Controversy: Restricting the Marketing Practices of Multinational Corporations in the Third World, 3 TRANSNAT'L LAW. 697, 735 n.196 (1990) (citing Carol-Linnea Salmon, Milking Deadly Dollars From the Third World, BUS. & SOC'Y. REV., Winter 1989, at 47). Greenpeace has estimated that its boycott against the Norwegian whaling industry has cost Norway approximately $60 million. See Martha Howton, International Regulation of Commercial Whaling: The Consequences of Norway's Decision to Hunt the Minke Whale, 18 HASTINGS INT'L & COMP. L. REV. 175, 191-92 & n.152 (1994) (citing Whaling Cost Norway $60 Million in Lost Exports - Greenpeace, REUTER EUR. BUS. REF., Feb. 22, 1994, available in LEXIS, Europe Library, Reueub File).
318. See supra note 122 and accompanying text. State and local boycotts are not distinguishable from private boycotts on the grounds that they have greater market impact. Private boycotts, in fact, may have substantially greater market impact that selective investment and purchasing laws. The private consumer boycott of Nestlé launched in protest of its marketing of infant formula in developing countries is estimated to have cost the company five billion dollars. See Nancy Ellen Zelman, The Nestlé Infant Formula Controversy: Restricting the Marketing Practices of Multinational Corporations in the Third World, 3 TRANSNAT'L LAW. 697, 735 n.196 (1990) (citing Carol-Linnea Salmon, Milking Deadly Dollars From the Third World, BUS. & SOC'Y. REV., Winter 1989, at 47). Greenpeace has estimated that its boycott against the Norwegian whaling industry has cost Norway approximately $60 million. See Martha Howton, International Regulation of Commercial Whaling: The Consequences of Norway's Decision to Hunt the Minke Whale, 18 HASTINGS INT'L & COMP. L. REV. 175, 191-92 & n.152 (1994) (citing Whaling Cost Norway $60 Million in Lost Exports - Greenpeace, REUTER EUR. BUS. REF., Feb. 22, 1994, available in LEXIS, Europe Library, Reueub File).
319. See Printz v. United States, 117 S. Ct. 2365, 2383 (1997), discussed supra notes 84-87 and accompanying text.
320. See supra notes 261-276 and accompanying text
321. Gould, 475 U.S. at 286 (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243 (1959)).
322. See United States v. O'Brien, 391 U.S. 367, 377 (1968) (stating that the government may regulate conduct with an expressive component if the regulation furthers "an important or substantial governmental interest . . . unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest"). But see TRIBE, supra note 87, § 12-6 (criticizing O'Brien).
323. 458 U.S. at 914-15.
324. In a primary boycott, one party to a dispute, the boycott advocate, exerts economic pressure directly against his opponent in an effort to force the latter to accede to the former's demands. A secondary boycott adds another level of compulsion: to influence the "primary" opponent, the boycott advocate exerts economic or social pressure against persons who deal with the primary party so that they will join the boycott advocate's cause. Barbara I. Anderson, Secondary Boycotts and the First Amendment, 51 U. CHI. L. REV. 811, 813 (1984).
325. Under the federal labor laws, primary boycotts are generally considered lawful, but secondary boycotts are not. The primary/secondary distinction in labor law has been justified as necessary to avoid constitutional questions that would be raised by an allencompassing ban on labor boycotts, especially those boycotts involving the expressive conduct necessary for the exercise of labor's collective rights. Gary Minda, The Law and Metaphor of Boycott, 41 BUFF. L. REV. 807, 843 (1993); see also Anderson, supra note 302, at 832.
326. Laurence Tribe has observed that if state and local divestment measures were preempted by federal law, federal courts would be required to monitor investment portfolios to determine the motivation behind investment decisions, a task that "would be difficult at best and incompatible with the Article III judicial power at worst." Tribe, supra note 143, at S23294.
327. Recognition of state and local rights under the First Amendment could not only help to clarify the status of state and local foreign policy initiatives, but also could assist the Supreme Court in its broader efforts to clarify the indeterminate contours of state sovereignty. See generally Printz v. United States, 117 S. CL 2365 (1997); see also supra notes 70-86 and accompanying text: One way for the Court to [define the distribution of power between the state and federal governments] might be to treat states' rights largely as mirror images of individual rights; in so doing, the Court would be able to set aside the clumsy and sometimes misleading vocabulary of state sovereignty as such, and restate the problem in terms more familiar to contemporary constitutional jurisprudence. TRIBE, supra note 87, at 385
328. U.S. CONST. amend. I.
329. Fenton, supra note 3, at 578; see also Schmahmann & Finch, supra note 1, at 204 ("[T]he constitutional system has no mechanism to ensure that the state and federal governments respond uniformly to changes in the circumstances that led to the adoption of measures aimed at foreign nations.").