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Theresa J. Lee, Democratizing the Economic Sphere: A Case for the Political Boycott, 115 W. Va. L. Rev. 531 (2012)

Abstract: The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize businesses in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy, and self-governance, and self-expression and autonomy. It also situates the boycott alongside current campaign finance doctrine via Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). Just as money amassed by corporations in the economic marketplace can be used to influence the political, the boycott allows those whose main economic resource is their participation in the market as consumers to aggregate that resource, with other like-minded consumers, to influence the political marketplace. This article also explores the doctrinal implications of these arguments for ongoing lawsuits challenging compelled disclosure regimes. As-applied challenges to such laws can be granted upon a sufficient evidentiary showing of "threats, harassment, or reprisals." This Article argues that the boycott cannot be categorized in this way. Especially in the case of initiatives and referenda, the political boycott is a critical tool of petition and should not be considered in this as-applied harassment analysis.