Abstract
Thirty-eight states have enacted “anti-BDS” laws. These laws require people or entities doing business with the state to certify that they do not participate in the Boycott Divestment Sanction movement against Israel. Typically, these laws define boycott as a “refusal to deal, terminating business, or other actions” that limit commercial relations with Israel or Israeli entities. It is highly contested in the courts and commentary whether these anti-boycott laws violate the First Amendment. Assuming arguendo that the “refusal to deal” and “terminating business” clauses do not implicate the First Amendment, that leaves the residual clause. At least one court and one commentator find that the “or other actions” clause does not implicate the First Amendment by applying the canon of statutory construction, ejusdem generis. Ejusdem generis looks to the specifically listed items that precede the residual clause to define and often limit its scope. This semantic canon of statutory construction is centuries old and still actively used today. In the October 2023 Term, the Supreme Court discussed ejusdem generis in four cases.
But the First Amendment issue raised by these anti-boycott statutes cannot be avoided simply by invoking ejusdem generis because semantic canons cannot be used to contradict a statute. A statute-by-statute analysis is required to determine whether ejusdem generis can be properly applied to the residual clause of these laws. To avoid the intractable debate about the use of legislative history, I reach this conclusion by focusing on anti-BDS laws that include enacted legislative findings, statutory definitions of “boycott,” and clauses that expressly exclude speech from their coverage. This analysis shows that applying ejusdem generis to some anti-BDS laws may contradict the statutes whereas applying it to other statutes may honor them.
In all instances, however, the context of each statute must be individually analyzed to determine the propriety of applying ejusdem generis. In addition to analyzing statutory text, Supreme Court cases applying ejusdem generis are analyzed, including four cases from the October 2023 Term. Moreover, these anti-BDS laws are being used as a template for anti-boycott laws in other contexts, such as fossil fuels, firearms, and economic boycotts generally. Thus, this Article’s relevance transcends the BDS context and raises important and timely questions regarding the intersection of statutory interpretation and the First Amendment.
Recommended Citation
Joseph A. Tomain,
Interpreting Anti-Boycott Laws in the Shadow of the First Amendment,
36 U. Fla. J.L. & Pub. Pol'y
293
(2026).
Available at: https://scholarship.law.ufl.edu/jlpp/vol36/iss2/1