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, nonexpressive 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, nonexpressive 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, Boycott, notes 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.”
Good!
This has been a long time coming. It’s about time that some backward circuit of the court overplayed its hand ruled in favor of this blatantly unconstitutional anti-BDS legislation
This now effectively sets up a long overdue SCOTUS battle and ruling that will kill this at a national level and deliver a stinging defeat for Israel and its unregistered proxies meddling and operating at every level of our local, state, and federal legislatures.
Of course, knowing the fealty of Israel’s servants in Washington and the third rail of politics that is everything Israel, the SCOTUS is more than likely to punt this back to the lower courts in fear of upsetting their political allies.
Either way it’s bound to make headlines and draw the attention of more Americans to the rank hypocrisy of our bought and paid of political class making BDS illegal when it comes to Israel, but more than legitimate when it comes to Russia.
Keep in mind (keep your lunch):
Major League Baseball boycotted Georgia.
The National Basketball Association boycotted North Carolina.
American companies that pulled their All-Star Games from those American states in response to conduct/legislation. Yet American companies can’t choose to boycott (of all things) the foreign, apartheid state of Israel.
The hell Harry Truman wrought.
From Jewish Currents, April – https://jewishcurrents.org/what-the-fossil-fuel-industry-learned-from-anti-bds-laws
What the Fossil Fuel Industry Learned from Anti-BDS Laws…Attacks on Israel’s critics have become the template for efforts to suppress climate activism, gun control advocacy, and other progressive movements….Isaac realized he could apply a similar logic to those who might seek to hobble the energy industry. Prompted by his conversations with fossil fuel executives, he drafted legislation preventing state agencies from contracting with companies that boycott or divest from fossil fuels….Palestinian rights advocates say the wave of bills targeting climate activism show how attacks on Israel’s critics have formed the basis for the suppression of other kinds of progressive activism. “They’re shrinking the space for public debate and action on some of the most important issues of our time,” said Meera Shah, a senior staff attorney at Palestine Legal, which defends the free speech rights of Palestine solidarity activists. “It points to why it’s so dangerous to permit this kind of Palestine exception to speech. Because not only is it harmful to the Palestinian rights movement—it eventually comes to harm other social movements.”
This permits state governments to demand what amounts to a loyalty oath … to Israel.
When I graduated from high school, in 1961 (!), I was asked to sign a loyalty oath. (What would have happened if I had refused? Probably nothing. But it didn’t occur to me.) But that was to the United States. Not to a foreign country.
The Court’s ruling was that boycotts are not protected speech because they are “purely commercial, non-expressive conduct.”
Hmmmm…Is the current US/EU/Global boycott of Russia “purely commercial”? Were the Sons of Liberty who dumped tea in Boston Harbor in 1773 acting out of “purely commercial, non-expressive” motives? (Note: at the time of the Tea Party the functional tax on tea was less than a penny a pound. In response to the near-universal refusal of Americans to purchase any products covered by the Townshend Acts, the British Crown removed all these “Intolerable” taxes but left a symbolic tax on tea in place so as to emphasize the Crown’s perpetual right to impose taxes at will. It was this subtle insinuation of royal prerogative that inflamed colonial passions, not the penny-per-pound tax). Is the long-standing US embargo of Cuba “purely commercial, non-expressive”? IOW can Cuba terminate the embargo at will simply by offering sugar or tobacco to US merchants at a discount? And let’s not forget, ever, the lessons and precedents set by NAACP v. Claiborne Hardware Co.
Furthermore, and I hate the idea of quoting Scalia, but he summarized Citizens’ United thusly: Money is speech.
The Court accepts (perhaps unwittingly) Scalia’s summary as to the “commercial” nature of boycotts but proceeds directly from there to claim to know our hearts and state that they hold no “expressive” intent.
Rubbish.
Boycotts reference taxes, purchases, investments, laws, property, wealth and choice. And speech. We put our money where our choices are and when we choose to not purchase/support a policy/candidate/idea we are engaging the exact same political values we enact while in the voting booth. A boycott is, in effect, an extension of the electoral process. For any court to suggest otherwise is to attempt to re-write history.
Of course, the rogue, vassalized makeup of today’s SCOTUS seems given to ignoring history and serving not the people but rather only a fraction/faction thereof so everything is in play. But either way, the decision, should SCOTUS even take the case, will reverberate monumentally. If for maintaining the people’s untrammeled right to boycott, Zionism will reel from that defeat as will all 35+ state legislatures in its thrall. If for Zionism, the Court may well ignite a fresh rebellion against political tyranny.
View here 549 Palestine posters on the subject of Boycotts/BDS