Al-Jazeera / June 22, 2022
Advocates say ruling will ‘flip the First Amendment on its head’ and endanger the free speech rights of all Americans.
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”.
“It’s a horrible reading, 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 ruling and position. This will flip the First Amendment on its head. It’s shocking to see we’re living in a time where our courts are deteriorating our rights and abilities to express ourselves.”
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.
A district court initially dismissed the lawsuit, but a three-judge appeals panel blocked the law in a split decision in 2021, ruling it violates the First Amendment. Now the full court has revived the statute.
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.
Judge Jonathan Kobes, who was nominated by former President Donald Trump, wrote in the decision that the state law does not ban criticism of Israel.
“It only prohibits economic decisions that discriminate against Israel,” Kobes said. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”
But 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 anti-boycott laws carry potential effects beyond the Israeli-Palestinian conflict. For example, several states have introduced bills modelled after anti-BDS laws to penalize 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.
He said he can see a scenario based on this ruling where a state would criminalize boycotting certain major corporations over ethical or environmental concerns.
“This is not just about boycotts. This is opening the door to strip away First Amendment rights of all Americans. It’s very frightening,” he said.
Multiple federal courts across the country have taken up and mostly blocked anti-BDS laws, but the appeals court’s ruling on Wednesday complicates the legal analysis on whether such statutes are constitutional.
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.
“You just have to put trust in a court that really has been [chipping away] at a lot of our rights lately,” he said.
Edward Ahmed Mitchell, deputy director at the Council on American Islamic Relations, echoed Ayoub’s remarks, saying the appeals court’s ruling “endangers the free speech rights of every American”.
“By ruling against The Arkansas Times, the Eight Circuit has broken with nearly every other court that has reviewed and struck down these unconstitutional, un-American anti-boycott laws,” Mitchell told Al Jazeera.
Ali Harb is a writer based in Washington, DC