Victory in Arkansas over anti-BDS law

Arkansas state building (Mike Rastiello)

Nora Barrows-Friedman

The Electronic Intifada  /  February 15, 2021

A US federal appeals court has ruled that an Arkansas law requiring state contractors to declare they will not boycott Israel is unconstitutional.

It is a blow to the Israel lobby’s use of legislation to crush the boycott, divestment and sanctions (BDS) movement for Palestinian rights.

“This is the first federal appeals court to decide on the constitutionality of anti-boycott laws, and with this decision not a single anti-BDS law has been upheld on the merits,” Palestine Legal stated on Friday.

“Every law that has survived a legal challenge has done so through legal tricks to avoid a constitutional analysis,” the civil rights group added.

Reviewing Arkansas’ law, which was passed in 2017, the 8th Circuit Court of Appeals decided on Friday to reverse a lower court’s dismissal of the initial challenge brought by a newspaper publisher.

The law “requires Arkansas to create a blacklist of companies that boycott Israel and requires public entities to divest from blacklisted companies,” according to Palestine Legal.

Alan Leveritt, the publisher of The Arkansas Timesappealed to the federal court in 2019.

Leveritt, represented by the American Civil Liberties Union (ACLU), filed the initial lawsuit after the University of Arkansas-Pulaski Technical College “informed The Arkansas Times that it had to sign a certification that it would not engage in a boycott of Israel if it wanted to continue to receive advertising contracts” from the university, the newspaper reported at the time.

Leveritt declined, and the paper lost the university contract.

He told NBC in 2019 that the paper wasn’t “looking for a fight.”

But when state agencies demand that journalists sign a political pledge, Leveritt added, “You’re not a journalist anymore. You’re in public relations.”

A federal judge threw out Leveritt’s initial case in January 2019, ruling that political boycotts are not protected under the First Amendment.

But the ACLU filed an appeal, saying that the law clearly violates constitutional protections “by penalizing disfavoured political boycotts.”

Jamil Dakwar of the ACLU emphasized that by refusing to contract with a company “based on its speech and association with others to determine whether it is participating in a ‘boycott of Israel,’” the state of Arkansas would be implicating free speech rights.

The American Jewish Committee, a major Israel lobby group, expressed its disappointment in the court’s ruling on Friday.

Suggesting that Arkansas can modify the current law to limit its statute while still penalizing companies that boycott Israel, the group said it has “already put into motion efforts to facilitate such changes.”

Encouraged by Israel lobby groups and the Israeli government itself, politicians claim that refusing to purchase Israeli products and criticizing Israel’s human rights violations – or its state ideology Zionism – is tantamount to anti-Jewish bigotry.

More than two dozen US states have passed anti-BDS measures.

But anti-BDS laws have been blocked by federal judges in ArizonaTexas and Kansas, citing violations of free speech rights.

However, lawmakers, working with Israel lobby organizations, have amended those measures to exclude the targeting of individuals, keeping the laws on the books.

A lawsuit is pending against an anti-BDS measure in Georgia.

Nora Barrows-Friedman is a staff writer and associate editor at The Electronic Intifada, and is the author of In Our Power: US Students Organize for Justice in Palestine (Just World Books, 2014)