News Brief

In one sense, a discussion of the legality of the anti-Nazi boycott might seem to be superfluous. For the hour is dark. Our people are fighting desperately for their very existence. In a great western European nation the rabble, by the successful use of appeals to exterminate the Jews, has seized the supreme power. Brutal and cowardly mob acts have been given the sanction of law. The outside world, having but recently emerged from the bloodbath of the great war, with its aftermath of revolutions, coups and counter coups, and accompanying kaleidoscope of terrors (White Russian, Red Russian, Hungarian, Italian, etc.), has grown too callous and too weary to protest. Besides, it is busily pre-occupied with the severest ecenomic crisis in modern history. And such protests as have been articulated have proved utterly ineffective, for the Nazis worship force and sneer at moral suasion. As was said by that keen observer and student of Germany, Frederick T. Birchall, commenting on the impotence of the League of Nations in enforcing its rulings against the Nazis: “Resolutions, however strong, are poor weapons against the bludgeons of brown-shirted patrols and against barbed wire concentration camps. Also, indifference to outside opinion is one of the main sources of Nazi internal strength” (New York Times, January 22nd, 1934, at page 7).

ONLY AVAILABLE WEAPON

When the rise of the Nazis to power became an accomplished fact, the Jewish masses the world over quickly realized that the boycott was the only weapon available to them in the war that the Nazis had declared upon their brethren in Germany. As time passed and the Nazis, by a system of subsidized espionage, terror, and propaganda, extended their war on the Jews beyond the borders of the unhappy Reich, it became evident that it was no longer a question of sympathy or help for the German Jews, but a vital struggle for the existence of the entire Jewish people. Under these circumstances, an inquiry into the legality of the boycott as a measure of self-defense, might well appear to be stained and irrelevant.

But from another point of view the question of the legality of the boycott is of grave importance. Besides being Jews, we are citizens of the respective countries in which we live. To these countries we owe our first allegiance. Great as may be our anxiety for the future of the Jewish people, our first duty is to inquire whether in defending our rights as Jews, we are also acting legally and in consonance with the best interests of our native or adopted country.

Furthermore, assuming the boycott as a movement to be legal and not unpatriotic, it is also important to know what tactics and methods may be followed safely, and what may lead to reprisals through damage suits, injunctions, and criminal prosecutions on behalf of the German interests affected.

It is the purpose of these articles to attempt to answer some of these questions, insofar as they affect American Jews engaged in conducting the boycott.

BOYCOTT ORIGIN

Some fifty years ago, Captain James Boycott, agent for the estates of the Earl of Erne in Ireland, incurred the wrath of the tenants from whom he collected rents. Under the sponsorship of Parnell and his league, the tenants united to isolate Boycott. He was cut off from all services and supplies, and it took a force of 900 soldiers to protect the Orangemen who finally rescued him from his plight and dug his potatoes for him.

Since that time the name Boycott has been used the world over as a term denoting the concerted refusal to have commercial, professional, or social relations with a person, group or country.

The very essence of the boycott is its lack of action, its passivity. It is this quality which has made it a favorite weapon of the weak in their fight against the strong. And in the intricate network of commercial relationships which characterizes the modern economic structure, the boycott, carrying with it a disruption of these relationships, has become a weapon of overhelming potency and effectiveness.

BOYCOTT NOT ILLEGAL

Now it is obvious that law cannot punish mere abstention from trading with any one. And it has indeed been held that in and of itself the boycott is not illegal. “It cannot be said that to boycott is to offend the law” (Mills v. U. S. Printing Co., 99 New York Appellate Division 611, affirmed 199 N.Y. 76). “The word ‘boycott’ does not necessarily import illegality; the test is the legality of the object in view and the means of attainment (Judge Hough, in Gill Engraving Co. v. Doerr, 214 Federal 111).

A boycott, however, can seldom be made effective without certain acts, such as appeals, propaganda, picketing, canvassing, etc. The question of legality arises in connection with such acts, and not with individual refusals to deal with the boycotted party. And, speaking broadly, the legality of these acts depends on whether or not the courts approve the object of the boycott, or at least find it to be justified and legitimate.

It goes without saying, of course, that acts illegal in themselves may not be used in furtherance of a boycott. Such acts as coercion, slander, or libel, the infliction of damage to property, breach of the peace, etc., may not be resorted to, whether the ends sought by the boycott be legal or not.

There is also a distinction made by the courts between “primary” and “secondary” boycott. The former consists simply of the cessation of concerted action or dealings with the one boycotted, while in the secondary boycott, which is usually held illegal, an attempt is made to compel third parties to cease dealings. The secondary boycott will be dealt with at greater length in the article on Boycott Tactics.

(The second article in this series will appear tomorrow and will describe precedents in court decisions on the boycott.)