Marjorie Cohn covers the Supreme Court decision to let the state’s anti-BDS law stand — and ignore legal precedent protecting the right to boycott under the First Amendment.
While the far right Israeli regime escalates its repression of Palestinians, the U.S. Supreme Court has refused to disturb an Arkansas law that requires government contractors to certify they are not boycotting Israel or “Israeli-controlled territories.”
The high court didn’t specifically uphold Arkansas’s anti-boycott law. However, the court declined to review the case because there were not four “justices” who agreed to hear it. So Arkansas’s anti-Boycott, Divestment, Sanctions (BDS) law remains in effect.
The BDS movement was launched in 2005, when 170 Palestinian civil society organizations called for boycott, divestment and sanctions — “non-violent punitive measures” — to last until Israel fully complies with international law.
To do that, Israel must: 1) end its occupation and colonization of all Arab territory and dismantle the barrier wall; 2) recognize the fundamental rights of Israel’s Arab-Palestinian citizens to full equality and 3) respect, protect and promote the rights of Palestinian refugees to return to their land as mandated by United Nations General Assembly Resolution 194.
“Boycott” is withdrawal of support for Israel as well as Israeli and international companies, including cultural and academic institutions, that violate Palestinian human rights.
“Divestment” means that churches, banks, universities, pension funds and local councils withdraw their investments from Israeli and international companies that are complicit in violating Palestinian rights.
“Sanctions” involve governments ending military trade and free-trade agreements and the expulsion of Israel from international fora.
The successes of the BDS movement have prompted Israel lobby organizations, including right-wing Christian Zionist groups, to introduce anti-boycott legislation at the local, state and federal levels.
Arkansas’ Anti-Boycott Law
One of these laws is Act 710, which Arkansas enacted in 2017. It says that a public entity shall not “enter into a contract with a company … unless it includes a written certification that it is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.”
Contractors who have contracts in excess of $1,000 must pay a 20 percent penalty if they refuse to sign the certification.
In October 2018, the University of Arkansas Board of Trustees informed Alan Leveritt, CEO of Arkansas Times, that they would not contract with his newspaper for additional advertising unless he signed a certification stating that the Arkansas Times is not currently boycotting Israel, and agreed for the duration of the contract not to boycott Israel.
Although Leveritt was not boycotting Israel, he would not sign the pledge. Thereafter, the board of trustees refused to enter into several advertising contracts with the Arkansas Times.
The Arkansas Times sued the board of trustees in December 2018 and requested a preliminary injunction, arguing that the act’s certification requirement violated the First Amendment. It restricts participation in political boycotts and targets protected expression on the basis of its subject matter and viewpoint, and it compels speech.
A federal district judge denied the motion for preliminary injunction and dismissed Arkansas Times’s lawsuit. A three-judge panel of the Eighth Circuit Court of Appeals reversed the district court and ruled that Act 710 violated the First Amendment.
In June 2022, the entire Eighth Circuit reversed the panel decision and dismissed the case. The court held that direct participation in a boycott is not protected by the First Amendment even where the state has singled out boycotts on a specific topic and is expressing a specific viewpoint for prohibition.
The First Amendment only protects the speech and association accompanying a boycott, not the boycott itself, the court said.
Precedent Protecting Boycotts
By dismissing the Arkansas Times’s lawsuit, the Eighth Circuit violated long-standing Supreme Court precedent which holds that states cannot suppress politically motivated consumer boycotts. The Supreme Court has ruled that the government cannot restrict expression because of its message, ideas, subject matter or content.
Nevertheless, on Feb. 21, the Supreme Court denied certiorari and refused to hear Arkansas Times’s appeal, thereby allowing the Eighth Circuit ruling to stand.
The high court’s refusal to disturb Arkansas’s anti-boycott law will encourage states that are introducing and passing bills targeting other politically motivated boycotts, such as those directed at firearms manufacturers, energy companies, and timber, mining and agriculture interests.
The American Civil Liberties Union (ACLU), which represented the Arkansas Times in this case, wrote in its petition for certiorari in the Supreme Court that under the Eighth Circuit’s rationale, “states would be free to outlaw participation in disfavored boycott campaigns — whether targeted at companies that support Israel, Saudi Arabia, Planned Parenthood, or the National Rifle Association” even though “content discrimination is presumptively unconstitutional.”
Citing Supreme Court precedent that protects boycotts seeking to “bring about political, social, and economic change,” the ACLU’s cert petition noted that politically motivated consumer boycotts “have been ubiquitous” throughout U.S. history.
It cited the boycott of merchants who sold goods made by enslaved people in the period between the Revolutionary and Civil Wars and boycotts during the civil rights movement and in opposition to South Africa’s apartheid. “These acts of collective protest are an enduring part of the fabric of American public discourse,” the ACLU wrote.
“From the Boston Tea Party to the Montgomery bus boycott, to the campaign for divestment from apartheid South Africa, boycotts have played a central role in this nation’s history,” First Amendment scholars, including Berkeley Law School’s Erwin Chemerinsky, Columbia Law School’s Katherine Franke and University of Chicago’s Geoffrey Stone, wrote in their amicus brief in support of the cert petition. They said:
“Americans have used boycotts across a range of issues to express their shared convictions and to force social and political change. The Eighth Circuit’s decision undermines this rich tradition of protest.”
Important Opportunity Missed
Anti-BDS laws have been introduced in more than 40 states and 35 states have enacted anti-boycott legislation, according to Palestine Legal.
Federal courts in Kansas, Texas, Georgia and Arizona have held that laws penalizing boycotts of Israel violate the First Amendment. The Eighth Circuit’s ruling, which the Supreme Court allowed to stand, conflicts with those state decisions.
“The Supreme Court missed an important opportunity to reaffirm that the First Amendment protects the right to boycott,” said Brian Hauss, senior staff attorney with the ACLU Speech, Privacy, and Technology Project, in a statement.
“This is simply a template. It doesn’t stop here,” Arkansas Times’s Leveritt told The Guardian. “We now have in the Arkansas legislature bills introduced to deny state contracts to financial and banking institutions that have [social, environmental and corporate governance] policies that prohibit them from investing in fossil fuels or firearms companies.”
“The struggle for collective liberation requires global solidarity and economic pressure,” Rep. Rashida Tlaib (D-Michigan), a Palestinian American, tweeted, responding to the Supreme Court’s refusal to review the Arkansas law. “Today’s decision is a travesty, but the people will not be silenced.”
Supporters of Palestinian rights will carry on the struggle both inside and outside the courtroom. “We will continue to push back against these laws that undermine our collective First Amendment rights but the courts will not liberate Palestine or save us from climate catastrophe,” Palestine Legal Senior Staff Attorney Meera Shah told Mondoweiss, adding:
“The best legal protection for BDS and every other movement that boycotts for justice is to mainstream people power tactics of collective action, which is why it’s critical to keep boycotting and organizing to ensure justice for all, including Palestinians.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.