The Eighth Circuit Court on Wednesday upheld an Arkansas law restricting state contractors from boycotting Israel. In 2018, The Little Rock-based Arkansas Times refused to sign a pledge not to boycott Israel as a condition of winning a market-value advertising contract from the state University of Arkansas. The Arkansas law says contractors who won’t sign the pledge must reduce their fees by 20%. The newspaper sued the state over this anti-BDS law, and a district court dismissed the lawsuit. The Arkansas Times appealed, and a three-judge panel in 2021 blocked the law in a split decision because it violates the First Amendment. Now the Circuit Court has brought the law back to life.
In the summary of its decision, the court wrote: “Arkansas Act 710 prohibiting state entities from contracting with private companies unless the contract includes a certification that the company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel, does not violate the First Amendment; under Arkansas’s canons of statutory interpretation, the court concludes the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, non-expressive conduct; the certification requirement concerning unprotected, nondiscriminatory conduct is not unconstitutional compelled speech.
One judge, Jane Kelly, dissented, and nine went with the ruling.
The Arkansas Times responded on Wednesday, saying the Eighth Circuit Court “is one of the most conservative in the country and this decision departs from decisions in many other states. But in most of those cases, faced with unfavorable court decisions, states have moved to correct laws to make them more free speech compliant. Arkansas has stood firm behind its law, one of nearly three dozen such ‘anti-BDS’ laws passed around the country.”
University of Pennsylvania Professor Amanda Shanor stressed that while public accommodations laws regulate “routine economic behavior,” the Arkansas anti-BDS law is aimed particularly at quashing political boycotts and therefore constitutes a First Amendment violation.
It should be interesting to see how the 6-3 conservative-leaning supreme court would rule on this one, should the AT choose to appeal (are you kidding me, of course, they’ll appeal).
The American Jewish Committee said in a statement following Wednesday’s ruling: “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.”
The chairman of the Israeli-American Coalition for Action (IAC for Action), Shawn Evenhaim, said in a statement: “We applaud Attorney General Leslie Rutledge and Solicitor Nick Bronni and the citizens and government of Arkansas for fighting to uphold the state’s refusal to contract or invest with parties engaging in commercial discrimination against Israel.”
Evenhaim added: “We also applaud Rep. Jim Dotson and Sen. Bart Hester for their many years of diligent work in this key area of public policy. In passing Arkansas’ original law, the state’s legislature was perfectly clear in its intent, predicating passage on the recognition that commercial discrimination and boycotts of Israel are overwhelmingly antisemitic in nature and are not political. That’s why the underlying law passed with such a high level of co-sponsorship and bi-partisan support.”
IAC for Action’s Executive Director, Joseph Sabag, who drafted Arkansas’ anti-BDS law, commented that “anti-BDS laws are narrowly tailored, anti-discrimination laws, similar to many other anti-discrimination laws that protect, among other categories of people, women, racial minorities and LGBTQ individuals. We are prepared to continue our vigorous efforts, in this case, should the plaintiff choose to appeal to the Supreme Court of the United States.”
President Trump’s appointed Circuit Judge Jonathan Kobes wrote in the decision that the Arkansas law does not ban criticism of Israel, “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 dissenting Judge Kelly wrote that to “consider a company’s speech and association with others to determine whether that company is participating in a ‘boycott of Israel’” violates the company’s First Amendment rights, and warned of a slippery slope that might in the future exclude from doing business with state institutions individuals who are “posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the Act.”
For the record, a 2018 study that was cited by Globes at the time, found that the impact of BDS on the Israeli economy comes to about 0.004% – and that was before most of the state anti-BDS laws have been enacted. At this point, it can be safely said that the BDS movement benefits from these court cases a great deal more than does Israel’s economy which, thank God, is one of the most prosperous in the world ($520.7 billion), and is rated among the top 20 economies.