Secondary Boycotts Against Businesses Displaying Rainbow Flags

In recent weeks, there has been a groundswell of so-called group "boycott" activity aimed at businesses that have publicly expressed solidarity with historically marginalized and underrepresented groups. Prominent examples include boycotts against Bud Light (a beer made by Anheuser-Busch), Target, NorthFace, and Kohl's. The latter retailers have been accused by certain groups of displaying rainbow "PRIDE" flags in their stores, which have emerged as a political and cultural wedge issue - especially during PRIDE month.

Group boycotts have a long and illustrious history, dating back to the civil rights movement. The NAACP famously organized boycotts by African-Americans of white-owned businesses as a means of demonstrating economic clout and bringing pressure to bear on legislatures to protect the rights of minorities. In response to the Montgomery boycott, the Supreme Court famously held in National Association for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886 (1982), that a boycott in furtherance of political action was protected by the First Amendment.

Since that decision, secondary boycotts have become a popular tool for unions and activists to exert pressure on corporations, most often in the labor relations area, where such activity may enjoy considerable legal protection. I have encountered these in my own practice, not infrequently, with exasperated clients seeking protection for their corporate reputation. Sometimes, there is not much that can be done, as the activity is protected under law.

However, does the present anti-PRIDE boycott activity enjoy First Amendment or other legal protection? It may not. And businesses targeted by such activity do not necessarily have to take it all lying down. 

First, it seems apparent that, despite efforts to obscure their origins, the present-day group boycotts may be being organized and publicized centrally and are not merely the "organic" outgrowth of popular sentiment.

Second, these group boycotts seem purposefully designed to cause harm to businesses that the boycotters disagree with. This is a boycott to force extra-legal changes to business behavior (such as alteration of the retail mix), which would not be an outcome achievable through current law. For example, if one reason that a business' display of rainbow flags on the sales floor is an expression of First Amendment rights, then boycott activity designed to stop this could be construed as an effort to discourage the exercise of those rights.

Not only do the organizers appear to discourage shoppers from purchasing from the targeted businesses, they sometimes disseminate and applaud videos on social media depicting vandalism of the targeted businesses. If the effort is designed to dissuade current and prospective consumers from patronizing the businesses, perhaps because they fear bodily harm, this might be conduct constituting tortious interference.

Third, since these activities seek to bring about a result not achievable through the political process or courts, they do not enjoy First Amendment protection.

In other words, the targets of such actions may not need to take this action lying down and could perhaps enjoy success fighting back in the courtroom.

The key difficulty will be, of course, in identifying "whose neck to wring," i.e., the right defendant(s) to sue. But, if this activity is indeed emanating from, or being actively amplified by, a small number of central sources, the right defendants might be out there.