The Trouble with Boycotts: Can Fossil Fuel Divest Campaigns Be Prohibited?

Abstract

Organizations like 350.org, Insure our Future, and DivestInvest are leading campaigns to urge boycott and divestment from fossil fuels as a means of addressing climate change. Increasingly, they are finding success, from individual consumers to massive pension and sovereign wealth funds. However, as organized group boycotts, divest campaigns may be vulnerable to prosecution under antitrust law. This article explores the likelihood of success in such a case, considering the history of the legal treatment of organized boycotts, the scope and purpose of antitrust law, and the possible application of the First Amendment to the divestment context. The article finds that fossil fuel boycotts straddle a number of contradictory characteristics, making application of existing theories inadequate. In particular, existing precedent protects political boycotts, but not those with primarily economic objectives, and fails to definitively address whether a non-competitive actor may undertake concerted action under antitrust law. In the context of climate change, where the political is economic, and political goals may seek significant economic changes (such as undermining an entire industry), we find existing theories may lead to a result that threatens both free expression and the health of the planet. The essential flexibility of the Sherman Act, however, provides room for protection of political activity, even where the ultimate objective is economic in nature.