Al-Jazeera / October 20, 2022
Arkansas anti-BDS law infringes on freedom of expression granted by US Constitution, rights group tells Supreme Court.
Washington, DC — A top civil rights group in the United States has asked the Supreme Court to review a lower court’s ruling that upheld an Arkansas state law penalising companies that boycott Israel.
The American Civil Liberties Union (ACLU) filed a petition on Thursday asking the top court to take up the case, arguing the Appeals Court decision violates the First Amendment of the US Constitution, which protects the right to free speech.
“When a state singles out particular boycotts for special penalties, as Arkansas has done here, it not only infringes the right to boycott — it also transgresses the First Amendment’s core prohibition on content and viewpoint discrimination,” ACLU lawyers wrote in their filing.
In June, the appeals court ruled in favour of the law, saying boycotts fall under commercial activity, not “expressive conduct” guaranteed by the First Amendment.
The law follows similar measures passed by dozens of US states to curtail the Boycott, Divestment and Sanctions (BDS) movement, which pushes to pressure Israel through non-violent means to end abuses against Palestinians.
Several rights groups, including Amnesty International and Human Rights Watch, have said Israel’s treatment of Palestinians amounts to apartheid.
The Arkansas case started in 2018 when The Arkansas Times, a publication in the city of Little Rock, sued the state after refusing to sign a pledge not to boycott Israel 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.
A federal district court initially dismissed the lawsuit but a three-judge appeals panel blocked the law in 2021, ruling it violates the First Amendment. In June, a full appeals court reversed the panel’s decision, essentially reviving the law.
The Supreme Court is the final level of appeal and review in the US judicial system. If the top court refuses to take up the case, the appeals court’s decision will stand.
The nine-seat Supreme Court has a conservative majority with three justices appointed by former President Donald Trump, a staunch supporter of Israel.
Rights advocates have warned that anti-boycott measures do not only push to unconstitutionally silence Palestinian rights activism but also threaten free speech rights in general — and are being used to restrict boycotts of other entities, including the fossil fuel industry.
Brain Hauss, a senior staff lawyer with the ACLU, said the June decision to uphold the anti-BDS law in Arkansas “badly misreads” legal precedents and withdraws protection for freedoms exercised by Americans for centuries.
“Worse yet, the decision upholds the government’s power to selectively suppress boycotts that express messages with which the government disagrees,” Hauss said in a statement on Thursday.
“The Supreme Court should take up this case in order to reaffirm that the First Amendment protects the right to participate in politically-motivated consumer boycotts.”
Americans for Peace Now (APN), an advocacy group that describes itself as pro-Israel and pro-peace, also called on the Supreme Court to review the ruling.
“A Supreme Court decision on this case, if it decides to take it up, could have broad repercussions in the United States and beyond,” APN President Hadar Susskind said in a statement.
“We hope the Court discusses the matter and rules that states have no business imposing conditions on the free speech rights of individuals, organizations and companies. You may support or oppose boycotting Israel or the occupation, but as a government you must not impose your opinion on others or sanction them for their views.”
Anti-BDS laws often restrict boycotts of Israel as well as any Israeli-occupied territories. Last year, several US states threatened sanctions against Ben & Jerry’s after the ice cream company decided to stop doing business in the occupied Palestinian West Bank.