On Tuesday, The Supreme Court of the United States declined to hear the appeal of the editor of the Arkansas Times following an Eighth Circuit appellate court ruling that upheld Arkansas’ law penalising boycotts of Israel engaged in by entities contracting with the government. This puts a definite end to the ongoing litigation over the controversial law.
If this rings a bell, it’s because I talked about this case back in July when the Eighth Circuit released its opinion. If you have not done so, or need a refresher, I would recommend reading that piece here.
The law in question requires that for a state entity to contract with a private company, they must include a provision stating that the private company “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.” The Arkansas Times argued unsuccessfully that this was a form of compelled speech and a violation of the first amendment. As I discussed in July, the Eighth Circuit held that while they are required to include this clause, companies are not required to make a public endorsement of Israel or prevented from engaging in expressive content related to the BDS movement. Similarly, the court held that the first amendment was not engaged because the expressive content must be apparently expressive to its Audience without the need for explanation, something that cannot be said about boycotts of Israeli speakers and products.
In the appeal to the Supreme Court, the ACLU, who were representing the Arkansas Times in this case, argued that the law was unconstitutional based on the long history of protection for popular boycotts in America, and that allowing this legislation to stand would not only interfere with the right to protest in support of Palestinians, may also lay the groundwork for similar legislation over boycotts for other causes such as climate change or gun control. The question of how this decision, and the Supreme Court’s decision to deny leave to appeal, may be used to facilitate other anti-boycott laws, is something that will need to be addressed. While on a certain level, the issues at play here are niche in that they involved preventing entities that contract with the government specifically from engaging in boycotts with a United States trading partner, it does not mean that there is no possibility for extrapolation or that down the line this precedent may not be relied on to support other anti-boycott laws.
As I previously discussed, the law in question, Act 710, does not prevent private individuals or even their businesses from engaging in personal boycotts of Israel and Israeli products. For small businesses who would be entering into contracts with government entities valued at $1,000 or less, Act 710 has no effect, and they are free to engage in boycotts of their choosing. This ruling does not inhibit the ability of an individual or business to cover their doors in windows in “Free Palestine” stickers. What the Supreme Court has confirmed is that BDS is not exclusively a free speech issue, and that we can in fact draw a line between protected speech, and unprotected commercial activity.
The BDS movement has done little to actually impact the lives of Palestinians, what it has been most effective at is legitimizing exclusionary and Antisemitic behaviour aimed at Jews and Israelis in the Diaspora. This ruling could shut the door on attempts by places like universities to use support for the BDS movement as an excuse for allowing and disallowing talks by certain speakers, and creates a strong foundation to address attempts by institutions and businesses that receive public funding to engage in commercial boycotts of Israel.
It is equally important that the law does not go so far as to infringe on the rights to make personal choices around consumption or engage in protests. While I may not agree or like that some individuals choose to abstain from purchasing Israeli products and seek to combat disinformation about Israel’s actions and legitimacy that runs rampant online, I understand that these actions, when they do not promote violence, are often forms of protected speech. I equally understand that it is protection for speech I disagree with that allows for the protection of speech I choose to engage in. Nevertheless, the decision to uphold the ruling of the Eighth Circuit affirms that, at least in Arkansas, BDS statements and resolutions will only be words and will hopefully prevent them from rising to the level of discrimination against Jews and Jewish businesses.
Another excellent piece, Sadie-Rae!