Discrimination by consumers

[Eugene Volokh]

        Shubha asks an excellent question.  A few thoughts:

        (1)  I wonder whether this issue came up in 1990 with the boycott by some
blacks of Korean-American grocery stores in Brooklyn.  See, e.g., N.Y.
Times, May 11, 1990; see also N.Y. Times, Sept. 11, 1982.

        (2)  NAACP v. Claiborne Hardware may also be an interesting example, in two
ways.  First, the stores being boycotted were chosen based on the race of
their owners (white).  But second, the main boycott was enforced using a
second-order boycott -- the threatened shunning of black customers by their
friends and neighbors.  This second boycott was not exclusively commercial,
but it was also race-based; white customers of the white stores were not
subject to these social sanctions (or for that matter the implicit threat of
violence).

        (3)  Even if a consumer boycott is in theory actionable, it would be hard
in most cases to prove that a consumer failed to buy at a store because of
the store owner's race or religion.  And while it may easy to prove that the
organizers are trying to persuade people to engage in such a boycott, the
organizers' speech would be protected by the First Amendment.

        (4)  Finally, if the theory is simply that under 42 USC 1981 consumers'
race-based buying decisions are illegal (a not implausible theory under
modern interpretations of 42 USC 1981), wouldn't it apply equally outside
the boycott context?  Do we really want it to be illegal for, say, Armenian
immigrants to prefer to shop at a fellow Armenian's store rather than at an
otherwise equivalent store owned by a non-Armenian (or, say, somewho who is
ethnically Turkish)?

        Eugene

Shubha Ghosh writes:

> Dinner conversation a few nights ago with a colleague
> turned to reactions to Muslim and Arab owned
> businesses throughout the United States, but
> particularly in Detroit which has a large Arab
> population.  The conversation sparked a question in my
> mind and I thought I would pass it on to the list.
>
> Are consumer boycotts that are based on racial animus
> actionable?  The historic problem and the paradigmatic
> issue has been one of denying service to consumers
> based on animus, whether restaurant service or
> housing.  But in many situations, minority owned
> businesses might be at the mercy of local consumers,
> and the problem of animus may be inverted.
>
> Of course the procedural problems are obvious:
> consumers constitute an amorphuous group while
> businesses are identifiable and hence potentially
> suable.  But absent these procedural obstacles, would
> instances of consumer based animus againt businesses
> be actionable under federal law or even under the
> constitution through some extended (and probably
> twisted) notion of state action?
>
> There were a couple of cases brought under the
> antitrust laws to attack consumer boycotts.  As  I
> remember, such challenges were unsuccessful because of
> first amendment issues.  Another question would be:
> does our commitment of consumer sovereignty give way
> to consumer animus?