‘Scary’: US Appeals Court Upholds Arkansas Anti-BDS Law | Boycott, Divestment, Sanctions
A U.S. appeals court has upheld an Arkansas law that bars state contractors from boycotting Israel, raising concerns the government’s violation of free speech when it comes to criticism Israeli abuses.
The Eighth Circuit Court ruled on Wednesday that the boycotts fall within the scope of commercial activity, which the state has the right to regulate, and not “expressive conduct” protected by the First Amendment to the US Constitution.
But advocates say laws banning the boycott of Israel, which have been passed by dozens of states with the backing of pro-Israel groups, are designed to unconstitutionally chill speech that supports Palestinian human rights.
These laws aim to counter the Boycott, Divestment and Sanctions (BDS) movement, which pushes for non-violent pressure on Israel to end abuses against Palestinians that have been described by leading human rights groups, including Amnesty International, like “apartheid”.
“It’s an awful read, and it’s very inaccurate,” said Abed Ayoub, legal director of the American-Arab Anti-Discrimination Committee (ADC).
“I think this is a very un-American decision and position. It will flip the First Amendment on its head. .
The Arkansas case began in 2018 when The Arkansas Times, a Little Rock-based publication, sued the state over its anti-BDS law after it refused to sign a pledge not to boycott Israel in order to win an advertising contract with a public university.
The law requires contractors who do not sign the undertaking to reduce their fees by 20%.
A district court initially dismissed the lawsuit, but a three-judge appeals panel blocked the law in a split decision in 2021, ruling it violated the First Amendment. Now the full court has revived the statute.
The Arkansas Times quoted its publisher Alan Leveritt as saying Wednesday that he would discuss “future steps” with the American Civil Liberties Union (ACLU), a civil rights group that has helped the newspaper pursue the State.
For its part, the ACLU called the decision “wrong” and a departure “from the longstanding traditions of this nation.”
“It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since. We are considering next steps and will continue to fight for strong protections against political boycotts,” Brian Hauss, attorney for the ACLU Speech, Privacy and Technology Project, said in a statement.
Judge Jonathan Kobes, who was appointed by former President Donald Trump, wrote in the ruling that state law does not prohibit criticism of Israel.
“It only prohibits economic decisions that discriminate against Israel,” Kobes said. “Because these business decisions are invisible to observers unless explained, they are not inherently expressive and do not involve the First Amendment.”
But in a dissenting opinion, Judge Jane Kelly dismissed the idea that the law is rooted in economic concerns.
“By express[ed] terms of the law, Arkansas not only seeks to avoid contracting with companies that refuse to do business with Israel,” Kelly wrote. “It also seeks to avoid contracting with anyone who supports or promotes such activity.”
She said the law allows the state — in violation of the First Amendment — to “consider a company’s speech and association with others in determining whether that company is participating in a ‘boycott of ‘Israel'”.
Such speech, which would be prohibited by law, Kelly explained, could include “posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel , or even public criticism of the law”. It’s unclear how many of Kelly’s colleagues from the 11-judge tribunal joined her in dissent.
The appeals court’s decision comes at a time when Americans across the country are encouraging economic and cultural boycotts of Russia following its invasion of Ukraine.
Republican and Democratic-leaning states in the United States have passed and enforced anti-BDS laws, discouraging corporations from boycotting not only Israel, but also illegal Israeli settlements in the occupied West Bank, occupied East Jerusalem and occupied Golan Heights. Syria.
More recently, many states have pushed to divest themselves of Ben & Jerry’s parent company after the ice cream maker withdrew from the occupied West Bank on human rights and international law grounds.
Free speech advocates say anti-boycott laws have potential effects beyond the Israeli-Palestinian conflict. For example, several states have introduced bills modeled after anti-BDS laws to penalize companies that boycott the fossil fuel industry.
CDA’s Ayoub pointed out that the interpretation that free speech can be suppressed for the benefit of the economic interests of the state allows for significant violations of the First Amendment.
He said he could see a scenario based on this decision where a state would criminalize the boycott of certain large companies for ethical or environmental reasons.
“It’s not just about boycotts. This opens the door to the removal of First Amendment rights from all Americans. It’s very scary,” he said.
Several federal courts across the country have taken up and mostly blocked anti-BDS laws, but Wednesday’s appeals court decision complicates the legal analysis of the laws’ constitutionality.
Abed said the Supreme Court should settle the debate, but he noted that the Supreme Court’s conservative majority had recently moved to suppress — not protect — individual rights.
“You just have to trust a court that has really been [chipping away] to a lot of our rights lately,” he said.
Edward Ahmed Mitchell, deputy director of the Council on American Islamic Relations, echoed Ayoub’s remarks, saying the appeals court ruling “endangers the free speech rights of every American.”
“In ruling against the Arkansas Times, Circuit Eight broke with nearly every other court that has reviewed and struck down these unconstitutional, un-American anti-boycott laws,” Mitchell told Al Jazeera.