The American Civil Liberties Union (ACLU) is petitioning the U.S. Supreme Court (SCOTUS) over an Arkansas law that prohibits companies from boycotting Israel.
The ACLU is acting on behalf of The Arkansas Times, a weekly alternative paper based in Little Rock, and its publisher Alan Leveritt. In 2017 Arkansas passed legislation targeting the Boycott, Divestment and Sanctions (BDS) movement a nonviolent, Palestinian-led effort that aims to hold Israel accountable to its obligations under international law. In 2018 the University of Arkansas’s Pulaski Technical College informed the paper that would have to sign a pledge not to boycott Israel if they wanted to maintain their advertising contract with the school. Leveritt declined to sign the document and sued the state over the law.
In June the Eighth Circuit Court of Appeals (one of the most conservative courts in the country) upheld the law. Judge Jonathan Kobes, a Trump appointee the American Bar Association rated as unqualified when he was nominated, wrote the decision. It asserts that boycotts are not protected speech because they “purely commercial, nonexpressive conduct.”
As Americans it is our right to boycott or not boycott anyone we please and it is none of the government’s business.
Arkansas Times Publisher Alan Leveritt
“The Arkansas Times is an intensely local Arkansas magazine that is not boycotting anyone,” Leveritt told Mondoweiss. “However we object to the state requiring us to take a political position on behalf of a foreign government in order to receive advertising from our local government. As Americans it is our right to boycott or not boycott anyone we please and it is none of the government’s business. Going back to the Boston Tea Party, to the Montgomery Bus Boycott to the South Africa anti-apartheid boycotts, choosing to vote with our dollars is as American as voting with our ballots. We take our First Amendment protections seriously and we are not going to stand by while our MAGA dominated legislature tries to take them away.”
The ACLU petition cites long-standing legal precedent, including 1982’s NAACP v. Claiborne Hardware Co. in which SCOTUS unanimously upheld the rights of Black Mississippians to boycott local businesses to protest racial discrimination.
Anti-BDS efforts across country
According to the group Palestine Legal, 233 bills targeting Palestine advocacy have been introduced across the country and 34 states have passed anti-BDS laws. The Eight Circuit’s Arkansas ruling is something of an outlier, as the ACLU and other rights groups have successfully challenged the constitutionality of these laws in a number of states. However, these victories have not impeded the legislative war on BDS and states have moved to adapt their law rather than abandon them.
For instance, after a federal judge blocked the enforcement of Texas’s anti-BDS law in 2019, Governor Greg Abbott signed a bill that narrowed the law to exclude individual contractors.
In 2021, after Ben & Jerry’s announced that it would stop selling its ice cream in the illegally occupied West Bank, a number of states moved to divest from its parent company Unilever and threatened the corporation with blacklisting. Eventually Unilever caved to the pressure and sold Ben & Jerry’s Israeli business to its local licensee in the country. Opponents of BDS hailed the move as a victory against the movement.
“The Ben & Jerry’s factory in Israel is a microcosm of the diversity of Israeli society,” declared Israeli Prime Minister Yair Lapid. “Today’s victory is a victory for all those who know that the struggle against BDS is, first and foremost, a struggle for partnership and dialogue, and against discrimination and hate.”
“This news is as welcome as a scoop of Cherry Garcia on a hot summer day,” tweeted Anti-Defamation League (ADL) CEO Jonathan Greenblatt.
Ben & Jerry’s is currently suing Unilever over the sale.
Arkansas bill
Julia Bacha’s 2021 film Boycott follows the case of Leveritt and two other individuals who mounted legal challenges against their states’ anti-BDS laws. At one point in the movie Bart Hester, the State Senator who introduced the legislation, explains why he thought the bill was necessary.
“I sponsored the anti-boycott bill because I felt like it’s the right thing to do,” he tells Bacha. “I feel like Jewish people are God’s chosen people and I felt an obligation to do anything within my control or power to support them or protect them.” When asked about a local rabbi who opposes the law, Hester admits that he didn’t consult with any Jewish leaders because he disagrees with them on the issue.
Arkansas Democratic State Senator Greg Leding tells the filmmakers that he voted for the law, but now has doubts. “I regret not knowing more about the issue when I voted and now,” he says. “After hearing from my constituents, I probably would have voted against it.”
Now that the ACLU has filed a petition SCOTUS will decide whether to review the case during this term. Four votes are needed to take it up. Based on prior cases it’s likely that a decision will be made early next year.
About time! As I see it this is a win-win decision for BDS either way SCOTUS decides the case assuming of course that it has the courage to even take the case. A SCOTUS decision to abolish the long-established American right to boycott (Think: Founding action of the American Revolution…think Boston Tea Party and the boycott of English tea) would send shockwaves throughout the country not unlike those sent by Dobbs and would likely lead to an as-determined, and divisive, response from the public.
A decision branding anti-BDS laws unconstitutional would be equally eruptive but only for Zionism/Israel, their American propaganda operations and Congressional lackeys. Do Americans support Israel? Yes, by overwhelming numbers. Do they support Zionism? No. In fact, most Americans, perhaps even a majority of Jewish Americans, as well as a majority of Congressional legislators, know next to nothing about Zionism and are not (now) highly motivated to study the subject. A decision to abolish the right to boycott will change that overnight.
Americans will rightly link the loss of their right to boycott to Zionism/Israel and given the radical, anti-democratic nature of such a loss, the ensuing outrage will be no flash-in-the-pan but rather a new, and for Israel, profoundly traumatic and vexatious feature of American political discourse well into the future, perhaps unto perpetuity. Zionists were warned against these possible outcomes before it launched its first state-level anti-BDS legislative effort, to no avail. If SCOTUS finds for BDS/right to boycott and against Zionism it will result in a staggering, self-inflicted wound for Zionism and simultaneously grant BDS an indelibly positive status in American judicial, historical and political registers.
Of course, with the current crop of mediocre, rogue Supremes other outcomes are possible as well. But even knowing the above might come to pass will cause many sleepless nights for the folks at AIPAC, Stand With Us, ADL, et. al.
Q: Is it antisemitic according to IHRA to write about/suggest these possible outcomes?
View here 566 Palestine posters on the subject of BDS/Boycotts/Embargoes/Blockades
There is only one real answer, boycotts are legal. However with the current supreme court, who the hell knows. Politics seems to have overtaken the Constitution.
Strange that Judge Kobe’s would argue that boycotts are not protected speech because they are purely financial in nature, when the SCOTUS has quite literally already ruled that money IS protected speech in Citizens United v. Federal Election Commission.
So not only is he completely wrong on the anti-BDS laws, but he is wrong three times in terms of the Constitution.
If SCOTUS takes up this case, they are going to find it very hard to rule against the ACLU without overturning both Citizens United (money is speech), NAACP v Claiborne Hardware Co. (right to boycott), and NAACP v Alabama (freedom of association). I also can’t see how they can refuse the case either, especially when a Federal Judge is blatantly and actively flouting long established Supreme Court precedent on multiple fronts, in his clearly wrong ruling.
We either have the Constitutional right to free speech, freedom of association, and the freedom to boycott whomever we damn choose and without the government abridging these freedoms or we don’t. Because Apartheid Israel aside, what do these clearly unconstitutional anti-BDS laws really say in the end? They say that the government has the right to penalize citizens for boycotting whomever THEY decide to favor. Which effectively bullies and forces citizens to finance corporations, institutions, and even foreign nations against their will. You’d think even for rabid right-wing Republicans that would be bridge too far.
Will the Constitution win or the current SCOTUS? What an irony that I feel valid asking this question.
An amicus brief –
“The Psychopath & The Sociopath: A Masterclass”
https://www.youtube.com/watch?v=gpjYtAB9i2w