Legal Aspects of the Boycott

(this is the fifth of a series of articles by Mr. Chartkin, wellknown New York attorney, on the legal effects of the anti-Nazi boycott in the United States and elsewhere.)

The question of whether sellers of German godds are “primary antagonists” or “third parties” is essentially important in cnnection with the employment of such devices as the disdtribution of lists of stores handling German goods. As an instrument of secondary boycott, such blacklists are prohibited under the decision in the “Danbury Hattlers” case (Loewe v. Lawlor, 208 U. S. 274). If, however, the offending storess are deemed to be the agents of the primary antagonists in what is a legitimate economic struggle, the use of a blacklist should not be illegal.

PICKETING

In most states, peaceful picketing, unaccompanied by violence, intimidationk, or misrepresentations, is recognized as a legitimate weapon of labor in its struggle for unionization or for better terms of employment. There is no reason to believe that the rule is different with respect to nonlabo boycott. There is an opinion by a former corporation counsel of the City of New York that the right to picket is confined solely to labor disputes (Police Department, City of N. Y., Circular No. 17, March 21, 1933) but this is hardly a correct statement of the law (see note in 33 Columbia Law Reiview 1267).

In New York, labor’s right of peaceful picketing is firmly established by a long series of decisions of the Coutt of appeals (245 N.Y. 260, 247 N.Y.65, 255 N. Y. 307, 260 N.Y. 315). While there are no decisions on the right of other groups to picket in pursuance of their interests, the language of the cases cited indicates a tendency in favor of a hands-off policy on the part of the courts in cases of picketing aristing in legitimate economic disputes. In stillwell Thereatres v. Kaplan, 259 N. Y. 405, Chief Judge Pound, in denying an injunction against picketing, significantly states:

“It is not within the province of the courts to restrain conduct which is within the allwable area of economic confict.”

If an anti-Nazi boycotting organization is permitted the same latitude in picketing as a labor union, it will be justified, in the words of Judge Pound.”in fairly setting forth its claims in controversy * * * by singhandbill or newspaer advertisement as a legitimate means of economic coercion” (idem).

INDUCING BREACH OF CONTRACT

In the course of a boycott it frequently happens that the boycotted party has contractual relations with a third party, and the effect of the boycott would be to compel a breach of these realtions. Thus, a theatre owner might be boycotted for exhibiting a German film which he is under contract to run for a certain period of time. Now the act of compelling or persuading a person to break an existing contract is a serious civil wrong, for which the guilty party may ordinarily be liable for damages.

A Study of decisions in boycott cases show, however, that the courts do not however, that the courts do not always prohibit boycotts which have the effect of inducing a breach of contract.

Thus, where it was made to appear to an English court that the purpose of a boycott against a theatrical manager was to raise the standards of morality of his chorus girls, who had been forced into prostituion by the low wages paid them, the acts of the boycotters in compelling theatre proprietors to break existing leases with the bogus manager were held to be justified (Brimelow v. Casson, 1 Chancery Division 302, 1924).

In New York, picketing by a labor union is lawful though the efect might be to compel the employer to breach an existing contract with a rival labor union (Stillwell Theatres v. Kaplan, 259 N.Y. 405).

SOCIAL CONSIDERATIONS UPPERMOST

To sum up as to the legality of boycott methods: a study of the decisions (many of which could not be discussed within the space available) indicates that what is true of the legality of a boycott generally, is in a great measure true of the legality of specific boycott tacties. The policy of the court, its view of the social consideratiosn involved, its reaction to the purpose and justification of the boycott, are of the first importance. Tacties which are illegal if the court merely tolerates the purpose of the boycott, may become legal if the court sympathizes with the object the be agained.

It may be relevant to add that the declarations by the American Federation of Labor sponsoring the anti-Nazi boycott will appreciably tip the scale in favor of legality. The Fedeaftion represents a large and important section of our population, and its stand will undoubtedly influence any court in weighing social valuse. besides, having accorded labor the domestic sphere, it will be difficult for the courts to justify the withholding of that same right in the arena of international conflicts.

(Next article: The Labeling of German Goods.)