Boycott, Divestment and Sanctions is not free speech but commercial activity
A US court of appeals upheld an Arkansas law that restricts state contractors from boycotting Israel, raising concerns about governmental infringement on free speech when it comes to criticism of Israeli abuses.
The Eighth Circuit Court ruled on Wednesday that boycotts fall under commercial activity, which the state has a right to regulate, not “expressive conduct” protected by the First Amendment of the US Constitution.
But advocates say laws that prohibit boycotting Israel, which have been adopted by dozens of states with the backing of pro-Israel groups, are designed to unconstitutionally chill speech that supports Palestinian human rights.
Such laws aim to counter the Boycott, Divestment and Sanctions (BDS) movement, which pushes to exert non-violent pressure on Israel to end abuses against Palestinians that have been described by leading human rights groups, including
Amnesty International, as “apartheid”.
The Arkansas case started in 2018 when The Arkansas Times, a Little Rock-based publication, sued the state over its anti-BDS law after refusing to sign a pledge not to
boycott Israel in order to win an advertising contract from a public university.
The law requires contractors that do not sign the pledge to reduce their fees by 20 percent.
The
Arkansas Times cited its publisher Alan Leveritt as saying on Wednesday that he will discuss “future steps” with the American Civil Liberties Union (ACLU), a civil rights group that helped the newspaper sue the state.
For its part, the ACLU called the ruling “wrong” and a departure “from this nation’s longstanding traditions”.
“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 robust protections for political boycotts,” Brian Hauss, staff lawyer with the ACLU Speech, Privacy and Technology Project, said in a statement.
In a dissenting opinion, Judge Jane Kelly dismissed the notion that the law is rooted in economic concerns.
“By the express[ed] terms of the Act, Arkansas seeks not only 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 to determine whether that company is participating in a ‘boycott of Israel'”.
Such speech, which would be prohibited under the law, Kelly argued, may include “posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the Act”. It is not clear how many of Kelly’s colleagues from the 11-judge court joined her in dissent.
The appeals court’s ruling comes at a time when Americans across the country are encouraging economic
and cultural boycotts of Russia over its invasion of Ukraine.
Republican- and
Democratic-leaning US states have passed and enforced anti-BDS laws, discouraging businesses from boycotting not only Israel, but also illegal Israeli settlements in the occupied West Bank, occupied East Jerusalem and Syria’s occupied
Golan Heights.
Most recently, many states have
pushed to divest from Ben & Jerry’s parent company after the ice-cream maker pulled out of the occupied West Bank over human rights and international law considerations.
Free speech advocates say antiboycott laws carry potential effects beyond the Israeli-Palestinian conflict. For example, several states have
introduced bills modelled after anti-BDS laws to penalise companies that boycott the fossil fuel industry.
Ayoub of ADC stressed the interpretation that freedom of expression can be suppressed for the benefit of the state’s economic interests enables significant infringements on the First Amendment.
Abed said the Supreme Court should settle the debate, but he noted the top court’s conservative majority has recently been moving to
strip away – not protect – individual rights.