As Anti-BDS Bills Become the Norm, ACLU Takes Free Speech Fight to the Supreme Court

Feature photo and graphic by MintPress News
Feature photo and graphic by MintPress News

Editor’s Note: This article originally appeared in MintPress News.

LITTLE ROCK, Arkansas—In June, a federal appeals court upheld an Arkansas law barring state contractors from boycotting Israel, sparking concerns over First Amendment rights in the United States.The Eighth Circuit Court of Appeals reversed a decision made last year by a panel of three judges who found that mandating a pledge to not boycott Israel is unconstitutional.

However, the recent court ruling determined boycotts are not expressive conduct and instead related to commercial activity and therefore the state can regulate such actions.

“It only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes, who was appointed by former President Donald Trump, wrote in the court’s opinion. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

“By declaring Arkansas’ Anti-BDS Law to be constitutional, the court has tacitly endorsed a Palestine-exception to the First Amendment,” Council on American Islamic Relations (CAIR) National Litigation Director, Lena Masri, said in a statement.

In 2018, The Arkansas Times sued the state over its Israel boycott law after refusing to sign the pledge. Originally, Arkansas Times publisher Alan Leveritt lost in District Court but won when he appealed to the Eighth Circuit Court. The state then appealed to the full appeals court and was granted a rehearing.

The American Civil Liberties Union, which represented The Arkansas Times, confirmed it plans to appeal to the Supreme Court. Brian Hauss, the ACLU’s chief litigator on the case, said in a statement that the court’s decision “misreads Supreme Court precedent and departs from this nation’s longstanding traditions.” “It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since,” Hauss said.

Leveritt, who is not participating in a boycott of Israel, told MintPress News that, as a matter of free speech, he wouldn’t sign the pledge.

“No media protected by the First Amendment in this country should take a political position in return for advertising,” Leveritt said. “This is America. The government doesn’t dictate to us  what we say and do and think, so that’s why we’re fighting it.”

A clause in the law mandates contractors who do not sign the pledge must then reduce their fees by 20%, which Leveritt said has severely hurt the publication’s finances.

Israeli Government Influencing U.S. Laws

Bills targeting the Palestinian-led Boycott, Divestment and Sanctions movement have spiked in recent years, according to Palestine Legal, an organization protecting the rights of pro-Palestine activists.

As detailed in the documentary, “Boycott”, the Israeli Ministry of Strategic Affairs established the propaganda project, Concert, as a public benefit corporation in order to circumvent U.S. laws on foreign interference. Concert’s primary purpose is to quell growing support for the BDS movement worldwide.

Through Concert, Israel has been able to funnel millions of dollars to organizations that would then lobby for these anti-BDS bills. Christians United for Israel — one of the main advocates for pro-Israel legislation — received $1.3 million from the Israeli government. Other groups include Eagle’s Wings, Hasbara Fellowships, America-Israel Friendship League, and the Israel Allies Foundation.

How the Supreme Court May Rule

If the Arkansas case does reach the Supreme Court, opponents of anti-BDS legislation like CAIR are optimistic the recent appeals court decision will be overturned.

“We realized the Supreme Court is not always a friend of civil rights, but the Eighth Circuit is very conservative, far more conservative than the Supreme Court even,” Justin Sadowsky, trial attorney with CAIR, said. “We’re very hopeful that the Supreme Court, which has often been champions of the First Amendment, will take a more nuanced look at it.”

CAIR’s deputy executive director, Edward Ahmed Mitchell, agreed with this sentiment. He noted that most of the Supreme Court justices take an originalist approach when interpreting the law, meaning they consider the original text of the constitution and apply it to modern scenarios.

“If they really look at what the constitution says — the plain meaning of it — and then also the history of it as originalists tend to do, then they have to rule that these laws are an unconstitutional violation of the free speech of the American people,” Mitchell told MintPress News.

Yet Alison Weir, founder and executive director of the independent research institute, If Americans Knew, outlined the Supreme Court’s pro-Israel influences – something that could lead to a less favorable ruling.

Weir explained in a recent article how the Supreme Court has a history of handing down decisions related to Israel that have changed longstanding U.S. traditions.

These included a 1967 ruling which sided with an Israeli citizen and overturned a ban on dual citizenship and a decision in 1998 that handed the Israel lobby’s flagship organization, the American Israel Public Affairs Committee, a victory over allegations the group violated federal election laws.

These decisions can be attributed to Israel partisans on the court like former Justices Abe Fortas and Stephen Breyer. Today, the court is still packed with Israel loyalists. Kentanji Brown Jackson, Amy Coney Barrett, and Brett Kavanaugh all have pro-Israel influences hidden in their education and career beginnings. Weir surmised Justice Elena Kagan may also pose a potential problem, given her love for Israel and her admiration for the country’s former Supreme Court president, Aharon Barak.

Setting a ‘Dangerous Precedent’

Other versions of the boycott law have passed in 33 states since 2016. Several U.S. residents have challenged these laws in recent years — in Texas, Georgia, Arizona, and Kansas — suing their states for violating their First Amendment rights and winning. But Arkansas is an outlier. Leveritt fears that if he loses in the Supreme Court, this could overturn favorable rulings in lower courts as well.

But it is not just Israel boycotts that are under threat. Boycotts, in general, appear to be at risk in the U.S. “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,” Palestine Legal said in a statement. “Given 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 American Legislative Exchange Council (ALEC), which has been instrumental in passing anti-BDS laws across the country, is now targeting financial firms for divesting from the fossil fuel industry.

The group works with corporate lobbyists and Republican state legislators to author legislation. In 2021, ALEC drafted the Energy Discrimination Elimination Act, requiring companies of 10 or more full-time employees to provide written verification it doesn’t boycott fossil fuel businesses before entering into a government contract. So far, Oklahoma, North Dakota, and Texas have signed similar legislation into law. Texas has also passed legislation prohibiting contracts with companies that boycott the firearms industry. ALEC is funded primarily by Koch Industries and a host of other energy and utility companies.

Other states are also using the anti-boycott model to target politically-charged industries. Alaska, Arizona, Idaho, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Utah, West Virginia and Wisconsin all have drafted anti-BDS legislation.

Julia Bacha, director of the documentary “Boycott”, described the rapid trajectory of anti-BDS legislation in the U.S. in a Twitter thread following the Eighth Circuit Court ruling. “When we started production, the risk that the anti-BDS bill would be used as a template was still theoretical. By the time we locked-picture, it was a reality,” she wrote.

But she also cautions U.S. residents to not solely pin the blame on Republicans over anti-BDS bills becoming the norm, writing:

Beware of press coverage that points the finger at Republicans for stripping away our rights without recognizing that Democrats were complicit in opening the pandora’s box when they overwhelmingly supported anti-BDS bills. There’s no First Amendment Exception to Palestine and this is as good [sic] time as any for the Democratic Party to learn this lesson, before irreparable damage to our rights in America is done.”

Thus, if certain pro-Israel and pro-fossil fuel advocates get their way, a fundamental right to protest will be removed from U.S. residents.

Jessica Buxbaum is a Jerusalem-based journalist for MintPress News covering Palestine, Israel, and Syria. Her work has been featured in Middle East Eye, The New Arab and Gulf News.