Individual freedom of trade is guaranteed by the Constitution of the United States. A person may choose to trade with X, and decline to trade with X, and decline to trade with Y; may choose to buy goods manufactured by A, and decline to purchase similar goods made by B. The choice may be inspired by malice, revenge or some other motive considered by the law improper: this would be in no wise affect its legality, for a lawful act cannot become of its motive.
It follows from these elementary observations that a good many things may be done by individuals in the course of a boycott without casting the slightest shadow of doubt on the legality of their conduct.
Thus, one may enter a store, and on being offered German merchandise, may decline to take it and may specifically point out to the storekeeper his motive in so doing. The customer may even go further and advise the merchant that the custoer’s patronage will be entirely withdrawn from the store until and unless the owner ceases dealing in German goods.
It alslo follows that when ordering goods, one may stipulate, verbally, or in writing, that neither the goods nor any ingredients or parts of the goods shall be of German origin.
Then, if upon reciept and inspiction of the merchandise it appears that the goods partly or wholly oreiginated in Germany, the buyer may return the merchandise and refuse to pay for it.
RIGHTS CANCEL CONTRACTS
The writer has on occasion been consulted by businessmen who had ordered goods without specifying to the jobber or manugacturer that no German goods were wanted, and on receipt of the merchandise had discovered that the the goods, or some ingredients thereof, were of German origin. This happens most often in the case of goods, such as drugs or chemicals, which ordered by description rather than by trade-mark. In such cases it is usually inpossible to cancel the order, although where the seller knew that the goods were intended for resale in a Jewish or anti-Nazi community and cuold not be retailed without difficulty because of their German origin, the contract might be repudiated and the merchandise returned. The simplest way to avoid any legal difficulties, however, would be for the buyer to insert in his order some such typewretten or printed clause as the following:
“The goods ordered hierein are expressly warranted by the seller not to be derived, in whole or in part, directly or indirectly, from the territorial limits of the German Reich.”
The foregoing are illustrations of boycott acts which are obviously legal. There are, on the other hand, boycott acts which are illegal, regardless of the pupose or ideal which might be invoked in their justification. In this category are acts of dammage or destruction to tangible property, violence or threats of violence, incitements or appeals to use violent tacties, slanderous or libelous statements, etc.
Between these two categories-of clearly legal and illegal acts-lies a field of boycott activities whose legality depends on the law of the partcular jurisdiction. Such activities are picketing, acts of “secondary boycott,” use of “blacklists,” and acts “inducing a breach of contract.”
In a large number of our states, laws have been enacted on the subject of boycotts and conspirecies, which, though originally intended to relate to capital-labor conflicts or toe the prevention of trade monopolies, may have a direct bearing on tacties allowable in the anti-Nazi boycott. The Sherman Anti-trust Law, which has been held by the Supreme Court of the United States to contemplate a labor boycott as a “restraint of trade,” may also have to be considered, especially when the acts under scrutiny affect interstate commerce.
DIVERSITY OF JUDICIAL VIEWS
More important still is the make-up of the tribunal before whom the case is litigated. Where the legislature has failed to prescribe the rule for a particular case, and the precedents are either too meager or too outworn to be controlling, the law will inevitably reflect the social background, the synapathies and the convictoins of the judiciary (See Cardozo, The Nature of the Judicial Process, Yale University Press, 1921). This is particularly true of the law of boycott, which has developed in this country as a breanch of labor law. Orignally tainted with the illegality of conspiracies, the strike (which is a form of boycott, in a sense) and the boycott gradually attained legal recognition as the social forces involved impressed themselves on the judicial cosciousness.
Mr. Justice Brandeis, in one of his greatest dissenting opinions (Truax v. Corrigan, 257 U. S. 312 (1921), pp. 354-376) reviews the legal history of t he strike and boycott and, stressing the wide diversity of judicial views, remarks:
“Judges, being thus called upon to exercise a quasi-legislative functon and weigh relative social values, mutually differed in their conclusions.”
The opinion is a really encyclopaedic treatment of the law of picketing, “secondary boycott,” and other methods employed by organized labor, as laid down by the legislatures and the courts in the several states of the United States and in all other English-speaking countries.
Within the scpe of this article it is barely possible to indicate a rew of the underlying tendencies of the present-day law with respect to those boycott tacties on which the laws and courts of different jurisdictions are in conflict.
PRIMARY AND SECONDARY BOYCOTT
The terms “primary boycott” and “secondary boycott” are “of uncertain content” (Mr. Justice Brandeis, op. cit,, p. 364). The “secondary boycott” refers to the boycott of third parties because of their supposed influence on or connection with the primary antagonist. Many states hold the secondary boycott to be illegal. New York, whose Court of Appeals is probably the most liberal in the Union with respect to the right for their interests without iterference from the courts, permits the secondary boycott to the extent of strikes against neutrals who are in the same industry (See Bossert v. Dhuy, 221 N. Y. 242). A few other states have adopted the same stand (Pierce v. Stablemen’s Union, 156 Cal. 70; Grant ect. v. St. Paul etc., 136 Minn. 167).
The United States Supreme Court has flatly reclared the secondary boycott to be illegal (Bedford Cut Store Co. v. Journeymen Store Cutters’ Ass’n., 274 U. S. 37). Hewever, its definition of the secondary boycott does not include advising or persuading the adversary’s customers by peaceful means to refrain from dealing with him (Fitney, J., in Duplex Printing Co. v. Deering. 254 U. S. 443, at p. 446), but merely the use of coercive pressure upon such customers.
In the case of the anti-Nazi boycott, the question as to who id to be consdered the primary antagonist and who a third party, within the meaning of the term “secondary boycott,” has not yet been passed upon by the courts. It would seem at least doubtful that stores handling German doods could claim to be “third parties,” like customers of a boycotted employer. It is true that in a sense they are the customers of the German Reich against whom the primary boycott is directed; but in a much truer sence, they are the direct agents of the Reich in the distribution of its goods and are the primary antagonists of those whose purpose it is to shut out German goods from this country’s markets.
It may be observed, however, that even if stores selling German goods are to be deemed “third parties,” it would still be perfectly legal, within the Supreme Court decisions mentioned above, to advise or persuade such stores by peaceful means, such as peaceful picketing, to refrain from selling such gfoods. The picket placards could merely appeal to the stores to abstain from trading with Germany, and would not suggest a boycott of these stores.
(The next article by Mr. Chaitkin discusses “black-lists,” picketing and other boycott measures.)