Michael Arria
Mondoweiss / February 21, 2023
The U.S. Supreme Court will not consider a challenge to an Arkansas law that targets the BDS movement.
On Tuesday the Supreme Court of the United States (SCOTUS) refused to take up a challenge to an Arkansas law that targets the Boycott, Divestment and Sanctions (BDS) movement. The state law requires all companies that contract with the state to sign a pledge promising to refrain from boycotting Israel.
The American Civil Liberties Union (ACLU) had been petitioning SCOTUS to hear the case on behalf of the Arkansas Times and the paper’s publisher Alan Leveritt. After the state passed its anti-BDS law in 2017 the University of Arkansas’s Pulaski Technical College informed the paper that it would have to sign the Israel pledge in order to maintain its advertising contract with the school. Leveritt refused to sign the pledge and sued the state over the requirement. Leveritt has repeatedly stated that he’s not a supporter of the BDS movement and that the Arkansas Times is not boycotting Israel, but that he launched the lawsuit to help preserve the protections of the First Amendment.
In February 2021 a three-judge panel found that boycotts of Israel were constitutionally protected, but that ruling was overturned by the Eighth Circuit Court of Appeals in June 2022. That decision was written by Judge Jonathan Kobes, a Trump appointee that the American Bar Association has rated as unqualified. Kobes determined that the law was constitutional because it only applied to “purely commercial, nonexpressive conduct.”
“We are obviously disappointed at the news today from the U.S. Supreme Court,” Leveritt told Mondoweiss. “Permitting the State of Arkansas to withhold public contracts from citizens who voice dissenting opinions is abhorrent and a violation of our First Amendment rights.”
“Our newspaper is not boycotting anyone, we cover local politics and issues, not the Middle East – but we do not allow the state to dictate our political positions on any issue in return for advertising dollars,” he continued. “We have made changes to our business model to become less reliant on advertising revenue, and our newsroom is now 100% funded by readers and donors. Thanks to their support, we do not have to worry about signing any political pledges dictated by our legislature. The Supreme Court can ignore our First Amendment rights, but we will continue to vigorously exercise them.”
According to the group Palestine Legal over 40 states have had anti-BDS laws introduced and 35 states have passed legislation targeting advocacy for Palestinian rights. Insofar as they’ve been legally challenged, courts tend to find that such bills unconstitutional, but the Arkansas ruling is one of the outliers. Anti-BDS laws have also been embraced by Republicans as a template for legislation aimed at prohibiting boycotts of the oil industry.
Julia Bacha, director of the 2021 documentary Boycott (which follows three efforts to challenge anti-BDS laws, including Leveritt’s) expressed her disappointment toward the news.
“It is unfortunate that the Supreme Court opted to stay on the sidelines for now, but let’s be very clear – the fight to protect the right to boycott is far from over,” Bacha told Mondoweiss in a statement. “The last (and only) time the Supreme Court reviewed the right to boycott in 1982, it ruled unanimously that the First Amendment protects the right of Americans to engage in boycotts to affect social and political change. Americans across the country will continue to exercise that right, and take their states to court when that right is violated.”
“Federal courts in Kansas, Arizona, Georgia, and Texas have all ruled anti-boycott bills are unconstitutional,” she continued. “Those rulings remain in effect. We are likely to see the legal fight continue to play out in lower courts and eventually the Supreme Court may realize it needs to intervene to reaffirm its own precedent and preserve what has been one of the most critical tools for social justice movements in America, from the civil rights movement to the struggle against Apartheid South Africa.”
Some outlets have incorrectly claimed that SCOTUS has “upheld” the Arkansas law, despite the fact that it won’t consider the petition and therefore not rule on the case’s merits. The denial doesn’t mean that SCOTUS backs the lower court’s decision, but that less than four justices believed the ruling warranted a review.
This fact hasn’t stopped pro-Israel organizations and politicians from celebrating the development. “This is a welcome decision from the Supreme Court,” tweeted the American Jewish Committee (AJC). “In rebuffing a challenge to an Arkansas anti-BDS law, the Supreme Court is sending a clear message against those who wish to isolate Israel economically and morally.”
Louis D. Brandeis Center Chairman and former Trump official Kenneth Marcus called it an “important victory against BDS” and a “great day for anti-discrimination law.”
Advocates for Palestinian rights have stressed that this fight will continue in and out the courts. “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. “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.”
These sentiments were echoed in a tweet from Rep. Rashida Tlaib (D-MI). “From the American civil rights movement to the fight against apartheid in South Africa, economic boycotts have a long history as an effective, nonviolent tool to speak out against oppression,” she said. “Let’s be clear: no matter what the Supreme Court says today, the right to boycott is fundamental and protected under the First Amendment of our Constitution. The struggle for collective liberation requites global solidarity and economic pressure. Today’s decision is a travesty, but the people will not be silenced.”
Michael Arria is the U.S. correspondent for Mondoweiss
