From Claiborne to Climate: Anti-ESG Boycott Legislation and Corporate First Amendment Rights

Authors

• Ingrid Tjendro, Fordham University School of Law

First Page

181

Keywords

first amendment; corporate speech; freedom of association; compelled speech; viewpoint discrimination; anti-ESG; environmental, social, and governance; ESG investing; boycott; anti- boycott legislation; anti-BDS; Boycott, Divestment, and Sanctions; state legislation; government contracting; procurement; pension investment; blacklisting; fossil fuels; firearm industry; climate change; climate advocacy; climate policy; net-zero; NAACP v. Claiborne Hardware Co.; Rumsfeld v. Forum for Academic and Institutional Rights, Inc.; American Sustainable Business Council v. Hegar; Keenan v. Russ; Oklahoma Energy Discrimination Elimination Act; Texas Senate Bill 13; overbreadth; content-based restriction; expressive conduct; inherently expressive conduct; circuit split; corporate governance; institutional investors; fiduciary duty; constitutional law

Abstract

Since 2021, at least twenty-one states have enacted laws targeting financial institutions and companies that incorporate environmental, social, and governance (ESG) considerations into their business practices. This Comment examines the First Amendment implications of one specific category of such legislation—state anti-ESG boycott statutes—and argues that they constitute an unconstitutional suppression of protected corporate speech and association.

Drawing on traditional anti-boycott jurisprudence, including NAACP v. Claiborne Hardware Co. and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., and the circuit split over anti-Israel boycott legislation, this Comment centers on the recent decision in American Sustainable Business Council v. Hegar (ASBC), the first federal court ruling to strike down a state anti-ESG boycott statute on First Amendment grounds.

Though welcoming the ASBC decision, this Comment argues that the court’s exclusive focus on definitional overbreadth leaves critical constitutional questions unresolved. Even under a narrowed “boycott” definition, anti-ESG statutes would independently violate the First Amendment through their viewpoint-discriminatory blacklisting regimes and compelled-speech procurement provisions. This Comment proposes a more robust constitutional framework to address these structural defects—a framework that will be essential as similar legislation proliferates across additional states.

Recommended Citation

Ingrid Tjendro, From Claiborne to Climate: Anti-ESG Boycott Legislation and Corporate First Amendment Rights, 94 Fordham L. Rev. 181 (2026).
Available at: https://ir.lawnet.fordham.edu/flro/vol94/iss1/12