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“There is nothing in the bill to prevent a refusal by anybody to buy anything.” — Sen. John Sherman, discussing his antitrust act, in 1890 As President Bush’s nominee for attorney general, John Ashcroft may well become a part of American legal history. However, his job experience as a government’s chief lawyer indicates that he apparently disregarded one of the clearer lessons from the history books: Prosecutions should not be used to stifle political speech. While serving as attorney general for the state of Missouri, Ashcroft filed a lawsuit in federal court against the National Organization for Women — Missouri v. NOW (1978). He alleged that the group’s support of a consumer boycott of Missouri as a convention location was a “combination and conspiracy in restraint of trade” violating antitrust laws. The background to the case was the proposed Equal Rights Amendment to the Constitution, which had been passed by both houses of Congress and submitted to the states for ratification on March 23, 1972. At the time of Ashcroft’s lawsuit, the ERA had been ratified by 35 states, with three more needed for ratification. In Missouri, ERA ratification legislation had been introduced twice in the state legislature, passing the state’s House once but being defeated in the Senate both times. In 1975, the National Federation of Business and Professional Women passed a resolution to boycott holding business conventions in states that had not ratified the amendment. Similar resolutions followed by other national organizations, including NOW. NOW was neither the initiator nor the sole organizer of boycotts supporting the Equal Rights Amendment. When the Business and Professional Women passed its boycott resolution, it was followed by the League of Women Voters; the National Association of Women Deans, Administrators and Counselors; the National Education Association; the American Association of University Women; and the American Political Science Association. More boycott supporters followed in the late 1970s, including NOW, the American Nurses Association, the National Council of Senior Citizens, and the American Home Economics Association. Indeed, some 200 organizations had joined the movement by the time Ashcroft filed suit against NOW, and another 200 joined after the filing. SELECTIVE PROSECUTION But Ashcroft sued NOW alone, and the District Court noted the selective prosecution in holding against Ashcroft. In his 19-page opinion detailing the background and law of the case, Judge Elmo Hunter noted that “[t]he national NOW organization did not become involved with this movement until 1977,” and ERA boycotts had been coordinated by at least 15 national organizations along with state and local organizations and individuals. Ashcroft pursued his case with a perseverance worthy of a better cause. After losing in district court, Ashcroft appealed to the 8th Circuit — where an amicus attorney for the other side was Ruth Bader Ginsburg; a panel voted 2-1 against him. Ashcroft then tried to get a rehearing en banc, and to get a hearing from the Supreme Court, but failed both times. By singling out NOW among all the boycotting organizations, Ashcroft’s litigation strategy ran directly into the First Amendment; the letters and phone calls urging that conventions be held only in ERA-ratifying states were treated as protected expression. Paradoxically, by bringing suit against NOW alone, he reinforced the argument, accepted by the district and circuit courts, that the boycott was political. The vehemence that the state voiced against the boycott appeared in the Feb. 21, 1979, issue of the St. Louis Post-Dispatch, which quoted unnamed “state officials” characterizing the boycott as “taking states as economic hostages, with ratification of the Equal Rights Amendment as the ransom.” The first takeover of the U.S. Embassy in Iran had just occurred on Valentine’s Day 1979, with 70 employees seized and held for more than two hours. When filing the lawsuit the previous year, Ashcroft had characterized the boycott as “economic tyranny.” Ashcroft might have spared himself and his state the defeat had he researched the sorts of permissible political boycotts that have occurred throughout American history. As the majority of the panel on the appeals court wrote: “Examples of political boycotts include … the refusal by colonists to import British goods in order to communicate the strength of public feeling against the Stamp and Townsend Acts early in our country’s history. One of the more famous political boycotts occurred in Montgomery, Alabama, to protest the racial segregation and discrimination on city buses. There have been consumer boycotts on meat, supermarkets, grapes, iced tea in cans, sugar or soft drinks, slacks, lettuce, textiles, chocolate, Saran Wrap, Mexico, tuna, animal skins and furs, Russian products and Japanese products.” The appeals court also noted the following historic conversation among senators passing the Sherman Antitrust Act: “Mr. Sherman: I desire to say distinctly that [preventing boycotts] is not my idea or the idea of any one of the committee. “Mr. George: I presume it is not. “Mr. Sherman: Nor do I believe it is a fair construction of the bill.” In light of all this, the appeals court’s rebuff to Ashcroft was unequivocal: “We hold that NOW’s boycott activities are privileged on the basis of the First Amendment right to petition and the Supreme Court’s recognition of that important right when it collides with commercial effects of trade restraints.” What is distressing about Ashcroft’s antitrust litigation against NOW is its similarity to previous unsavory attempts to silence political expression. Early labor union organizing, for instance, was repeatedly attacked under antitrust law, ultimately unsuccessfully. And segregationists of the 1950s and 1960s attempted to sue the NAACP over civil rights boycotts of local businesses. Indeed, it is striking to note the parallels between Ashcroft’s suit against NOW and the tactics used by segregationists during the civil rights era. In one of the most famous civil rights cases, NAACP v. Alabama (1964), Alabama sought to ban the National Association for the Advancement of Colored People from its borders for alleged irregularities regarding how the organization registered with the state, for encouraging a boycott of the state’s football team, and for encouraging a boycott of a segregated bus line in Montgomery (among other claims). In its opinion in favor of the NAACP, the Supreme Court wrote: This case, in truth, involves not the privilege of a corporation to do business in a State, but rather the freedom of individuals to associate for the collective advocacy of ideas. “Freedoms such as … [this] are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock (1960). Ironically for Ashcroft, the Missouri case ended up contributing some legal precedent against such attempts. Missouri v. NOW has been cited in more than 60 subsequent opinions, including prominent decisions protecting other boycotts — notably by the Supreme Court in NAACP v. Claiborne Hardware Co. (1982), affirming the right of civil rights advocates to boycott businesses, and by a federal district court in Adolph Coors Co. v. Wallace (1984), upholding a labor boycott. It seems clear that Ashcroft’s motivation in pursuing the lawsuit was his own; neither the mayors of St. Louis and Kansas City nor the local convention bureau endorsed it. But it remains unclear whether the failed lawsuit reflects Ashcroft’s continuing views on the treatment of women’s groups, the First Amendment, and antitrust law. Ashcroft testified at his Senate confirmation hearings that he knows the difference between enacting and enforcing the laws. But his prosecution of the case against NOW makes one wonder. Margie Burns teaches English at the University of Maryland, Baltimore County, and is a free-lance writer.

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