The courts won’t kill the BDS movement against Israel

BDS

Elana Baurer

Jacobin  /  June 28, 2022

A federal court of appeals recently ruled that laws prohibiting boycotts are not illegal. It’s the latest in the Right’s attempts to stomp out the Boycott, Divestment, and Sanctions movement’s challenge to Israel’s abuses — and further erode free speech.

On June 22, the United States Court of Appeals for the Eighth Circuit ruled that an anti-boycott law in Arkansas was not unconstitutional. In other words, the Court said that boycotts are not protected free speech under the First Amendment, a break from most other federal courts in the country. This is one chapter in an ongoing saga of how right-wing legal activists are attempting to fight the Boycott, Divestment, and Sanctions (BDS) movement, waged by activists around the world against Israel’s illegal and immoral actions against Palestinians, in the courts by undermining the fabric of basic free speech rights.

Pro-Israel activists who have been waging attack after attack against the BDS movement in the United States court system are rejoicing. “[The decision] is a resounding victory for Arkansas’s antidiscrimination law and reinforces Arkansas’s relationship with our long-time ally, Israel,” said Arkansas attorney general Leslie Rutledge. Christians United for Israel (CUFI) Action Fund tweeted, “This is a victory for all those who believe tax dollars should not be used to support the antisemitic and anti-Israel BDS movement.”

The impact of this decision may be substantial — and may reach beyond organizing against Israeli apartheid. Other bans on boycotts relating to a wide variety of issues (like the fossil fuel, tobacco, and firearm industries, to name a few) may pop up in different states. Right-wing activist and law professor Eugene Kontorovich has already announced that he hopes this ruling will pave the way for federal anti-BDS legislation.

Pro-Israel groups have been slowly chipping away at the constitutional protection for free speech on campuses, in the courts, in legislative bodies, and in business transactions to staunch the growing criticism of Israeli human rights violations and policies.  BDS was formally launched in 2005 by a coalition of about a hundred seventy Palestinian grassroots and civil society groups, and it has notched campaign victories as well as substantial visibility and support both in the United States and internationally.

The attacks on BDS have been so severe precisely because of BDS’s wide-ranging success. As Bina Ahmad, Phyllis Bennis, and Ben White’s 2018 Transnational Institute paper “Shrinking Space and the BDS Movement” reports, repression has been escalating “precisely because Israel’s supporters realize they are losing public support particularly from young people. That also explains why the attacks are so much tougher, indeed often vicious, against potentially vulnerable student activists.” A UN report concluded that BDS was a major factor behind the shocking 46 percent drop in foreign direct investment in Israel in 2014. Since 2005, major corporations like G4S and Veolia have sold Israeli subsidiaries, companies like SodaStream and Orange have left Israel, and thousands of artists have boycotted Israel.

In addition, investors have divested from companies targeted by BDS including George Soros, the Bill & Melinda Gates Foundation, the huge TIAA-CREF public sector pension fund in the United States, Dutch pension giant PGGM, and Norwegian bank Nordea, as well as government pension funds in Sweden, Norway, New Zealand, and Luxembourg. And academic associations in the United States, Canada, Ireland, Qatar, South Africa, and the UK have voted to support BDS, including the US’s American Studies Association.

In 2017, amid a wave of related legislation around the country, Arkansas lawmakers passed a law requiring public contractors to promise that they would not boycott the State of Israel. (Interestingly, the rabbi of the largest synagogue in Arkansas has opposed this legislation, saying that the people who drafted it didn’t consult the local Jewish community.) In 2018, the Arkansas Times sued the University of Arkansas because its Pulaski Technical College affiliate refused to continue advertising unless the Arkansas Times signed the anti-boycott pledge, citing the state law.

Arkansas Times publisher and founder Alan Leveritt explained the paper’s decision, writing, “Though boycotting Israel could not have been further from our minds and though state funding is a significant source of our income, our answer was no. We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience.” The newspaper was not and has never been engaged in a boycott of Israel.

A three-judge panel ruled that the law was unconstitutional last year, but the Eighth Circuit, one of the most conservative courts in the country, overturned that ruling last week, saying the anti-boycott law only restricts “non-expressive” conduct, namely business activity, and therefore does not implicate the First Amendment. Of course, civil liberties groups (and anyone who understands that the point of a boycott is to make a political statement) find this ridiculous. The economic pressure of boycotts as a strategy, the activity that the Court says is not protected, is supposed to actually be the speech.

In addition, the June 22 ruling said that requiring contractors to sign a certification not to boycott was not compelled speech because it wasn’t requiring the signer to explicitly take a position on the boycott itself. If you’re scratching your head about the logic here, you’re not alone.

Federal courts have struck down similar anti-boycott state laws in Arizona, Georgia, Kansas, and Texas as unconstitutional. No connection between any of these states and Israel has been established; the clear intention of such laws is to advance a political agenda. “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,” Leveritt said.

Boycotts are deeply and historically American. The Boston Tea Party comes to mind, along with the iconic Civil Rights Movement boycotts and student boycotts of apartheid South Africa. It is hard to imagine that the Supreme Court will actually hold that boycotts are not protected speech and overturn cases about economic speech. But with a Court this conservative, all bets are off.

Whatever happens in the courts, though, the BDS movement will not be extinguished. The movement for justice in Palestine has grown too much, and the horrors committed by Israel have become too obvious, for a court ruling to halt the advance of a movement with justice on its side.

Elana Baurer is general counsel at Jewish Voice for Peace and lives in Philadelphia, Pennsylvania