In landmark ruling, Court of Appeals allows states to enforce anti-BDS pledges

The Thomas F. Eagleton Federal Courthouse in St. Louis, where the 8th U.S. Circuit Court of Appeals resides (Karen Elshout)

Mitchell Plitnick

Mondoweiss  /  June 22, 2022

The fight for the right to boycott is crucial not only for Palestine, but for all social justice movements. A new legal ruling has put that in jeopardy.

In a decision which could have far-reaching implications for political actions and free speech, the Eighth Circuit Court of Appeals ruled that the state of Arkansas was permitted to force anyone contracting with the state to pledge that they will not engage in boycotts of Israel. 

The Court’s ruling was that boycotts are not protected speech because they are “purely commercial, non-expressive conduct.” 

As one dissenting judge pointed out, however, the law in question “prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime…Such a restriction violates the First Amendment.”

That conclusion should be obvious.

The case involves the Arkansas Times, a local newspaper, which contended that it was unconstitutional for it to be forced to pledge not to engage in a boycott of Israel to secure a certain advertising deal with the University of Arkansas, a state university. 

The ACLU’s Brian Hauss said that, “The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent and departs from this nation’s long standing traditions.”

That’s putting it mildly. The idea that boycotts are “purely commercial, non-expressive conduct,” as the Court claims, flies in the face of reason. It assumes the rationale for boycott is something other than raising awareness or trying to force a change in policy and is, instead, motivated by commercial concerns. Yet boycotts are inherently political, not commercial, acts, and it is hard to find examples of boycotts that are intended to bring about commercial, rather than political, change.

“We hope and expect that the Supreme Court will set things right and reaffirm the nation’s historic commitment to providing robust protection to political boycotts,” Hauss added.

The Court’s opinion argues that Arkansas’ BDS law, “does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

The publisher of the Arkansas Times points out the absurdity of this argument: “We consider being banned from doing business with our state government for refusing to sign a pledge not to boycott Israel a ridiculous government overreach that has nothing to do with Arkansas. More importantly, in our particular case it requires the Arkansas Times to take a political position in return for advertising. We don’t do that.”

Indeed, the Court says that the decision to boycott Israel would be “invisible to observers unless explained,” yet uses this as a rationale to allow the state to force contractors to make a public statement vowing not to boycott Israel. How can any reasonable person not see the obvious contradiction there?

Standing with the Arkansas Times is an impressive spectrum of activist groups. They span a political spectrum from CAIR, the U.S. Campaign for Palestinian Rights, the U.S. Campaign for the Academic and Cultural Boycott of Israel, all the way to pro-Israel groups like J Street and T’Ruah. 

Also opposing the law was Rabbi Barry Block of Congregation B’nai Israel in Little Rock, the largest Jewish congregation in Arkansas. According to the Jewish Telegraphic Agency, “In previous testimony, Block said the legislators who drafted the law did not consult the local Jewish community.”

Not involved in the lawsuit but working hard to see BDS criminalized is the American Jewish Committee. They were ecstatic by the ruling, writing, “This was the first appellate test of laws that combat the Boycott, Divest and Sanctions movement, whose primary aim is to eliminate the State of Israel. The Eighth Circuit unequivocally affirmed that such laws do not infringe on the First Amendment. As the court noted, Arkansas has broad power to regulate economic activity, and taking a position on a boycott does not inhibit free speech.”

That last sentence gives the game away. Even the AJC, intentionally or not, affirms that this ruling is not just a threat to the BDS movement; it’s a huge threat to civic protest actions of any kind. If the government is empowered to penalize protests, this clearly robs the people of one of the few tools they can use to exert popular pressure on governments, corporations, or any centers of power. 

The AJC has played a huge role here. This case came up in early 2021 and a three-judge panel from the same court ruled that the Arkansas law, as it was then written, was, indeed, unconstitutional. The panel, at that time, was following the precedent set by decisions involving other states: Arizona, Kansas, and Texas. But those cases created some loopholes that the AJC made no secret of being eager to try, dealing with the size of contracts and the businesses in question. This case was the test for the AJC’s new approach to attack free speech, and in the first try at least, they have been successful.

The fight for the right to boycott is crucial not only for Palestine, but for all social justice movements. Julie Bacha, filmmaker and creative director of Just Vision, the organization which produced the highly-praised film, Boycottnotes that, “There’s no First Amendment Exception to Palestine and this is as good time as any for the Democratic Party to learn this lesson, before irreparable damage to our rights in America is done.”

Mitchell Plitnick is the president of ReThinking Foreign Policy; he is the co-author, with Marc Lamont Hill, of Except for Palestine: The Limits of Progressive Politics