Will US scrap free speech rights to serve Israel ?

The US Supreme Court could determine the right of Americans to use boycotts as a form of political expression (Ben Schumin)

Nora Barrows-Friedman

The Electronic Intifada  /  June 27, 2022

The US Supreme Court last week overturned the right of a woman to take the private decision to terminate a pregnancy.

What had been a constitutionally settled right for 50 years, was abrogated by the stroke of a pen. This followed decades of relentless work by right-wing anti-abortion groups, including top lawmakers, to erode rights to healthcare and control over one’s body, family and future.

A majority of Americans views the overturning of Roe vs. Wade as a serious step backwards for women’s rights, and worries that other rights may now be in danger.

Indeed, the same court could decide to prevent consumers, companies, publications and state contractors from exercising their right to engage in political boycotts – a right that has been recognized by that court for decades.

Reversing its own 2021 decision, the 8th Circuit Court of Appeals ruled on 22 June that boycotts of Israel are not protected by the First Amendment of the US Constitution.

The American Civil Liberties Union (ACLU) has confirmed it will appeal to the country’s top court. If the Supreme Court accepts to hear the case, it could either set an important precedent for protecting boycotts as political speech, or, if the court agrees with the 8th circuit, speed up the dismantling of free speech rights.

If the Supreme Court chooses not to hear the appeal, the 8th Circuit’s decision will stand.

The ruling focused on a case in Arkansas brought by the publisher of The Arkansas Times who was required to declare that the newspaper would not boycott Israel as a condition of receiving state contracts.

More than 30 US states have passed measures condemning or attempting to restrict the boycott, divestment and sanctions (BDS) campaign for Palestinian rights, according to Palestine Legal, a group that defends activists for Palestinian rights from legal harassment.

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.

The 2017 Arkansas law, which was struck down in 2021, required the state to create a blacklist of companies that boycott Israel and forced public entities to divest from blacklisted companies.

The part of the law at issue in this case is the requirement that state contractors provide written certification that they do not and will not boycott Israel.

The 8th Circuit Court of Appeals ruled in February 2021 that the Arkansas law was unconstitutional because it was an attempt by a government body to compel political speech.

But last week, a bigger panel of judges from the same court reversed the decision.

That reversal “ignores that history and precedent, treating the state law as a restriction on purely commercial conduct that carries no political message,” Palestine Legal said.

“In upholding Arkansas’ anti-BDS law, the court refused to confront the reality that these laws are part of an effort to shield Israel from accountability,” the group added.

The decision “is an attack on our right to dissent from the status quo.”

‘Public relations’ for Israel

Represented by the ACLU, publisher Alan Leveritt filed the initial lawsuit in 2019 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 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 disfavored political boycotts.”

Major Israel lobby groups slammed the appeals court’s initial ruling last year – and subsequently praised the recent reversal.

The ACLU’s Brian Hauss said that “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.”

Such boycotts played a key role in the civil rights movement to end legally formalized white supremacy in the United States and more recently have been successfully used to challenge discriminatory laws in US states.

Julia Bacha, a filmmaker whose new documentary, “Boycott,” focuses on the fight against anti-BDS measures, warned that the 8th Circuit Court’s ruling has far-reaching implications for other political actions.

She noted that copycat measures aiming to prohibit boycotts of the fossil fuel and firearms industries are already in state legislatures.

And she implored activists to hold Democratic lawmakers equally responsible for their complicity “in opening the Pandora’s box when they overwhelmingly supported anti-BDS bills.”

Palestine Legal asserted that “bad decisions by courts cannot stop a principled justice movement.”

Amid the proliferation of anti-boycott laws “targeting other social justice movements, this decision sets a dangerous precedent for anyone interested in seeking social, political, or economic change,” the group added.

But, Palestine Legal explained, “even as these battles play out in courtrooms and capitols, the critical work of organizing continues toward our ultimate goal: freedom and justice in Palestine, the US and beyond.”

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)