Not all forms of BDS are protected speech
The Eighth Circuit upheld Arkansas' anti-BDS law and sent a message about protected speech.
Let’s play a game…
Raise your hand if you, your child, or your grandchild have been a student on a university campus in the last decade.
Keep your hand up if you can name one university that has held a referendum on a BDS resolution in that time.
Keep your hand up if you, your child, or your grandchild have experienced or been concerned about the possibility of a BDS vote on campus.
Is your hand still up? If you were involved in any sort of Jewish or pro-Israel student organization on campus in North America, it probably is.
My university’s last BDS referendum was in 2014, five years before I became a student there, and was prevented when a donor who provides the majority of engineering internships for the university threatened to end the program if the vote passed. I count myself among the lucky ones that I graduated before another vote took place - and I do fully expect another vote to take place unless aggressive action is taken by the administration - and did not have to undergo the stress and fear I watched friends at schools voting on BDS resolutions, or where they had already passed, experience.
All of my experience as a Jewish student on campus resulted in my being amazed to discover that in 2017, Arkansas, along with eight other states, passed a law requiring that public contracts include a provision that the contractor would not engage in a boycott against Israel.
Yes, you read that correctly. Arkansas, which has a Jewish population of approximately 2,225 - 0.07% of the American Jewish community - passed an anti-BDS law. Not only does this law exist, but it has been upheld on appeal.
The Arkansas law almost immediately came under scrutiny, and the question was raised, entirely validly, as to whether it constituted a violation of free speech as protected under the first amendment. Some of this debate was put to rest in June when the Eighth Circuit Court of Appeal released its decision in Arkansas Times v Waldrip.
Before diving into the decision and its meaning for those impacted by it, I want to explain why, as a staunch Zionist and supporter of Israel, I believe that the question about the first amendment was not only valid, but important.
I rely on factual, legal, and historical arguments to defend Israel. While there is a good case to be made that the threshold for support of Israel’s right to exist is unnecessarily high, that doesn’t appear to be changing in a hurry. For that reason, it is necessary to have strong arguments to support its right to exist. It is crucial that those arguments are able to withstand scrutiny. Decisions like this one reinforce the arguments against BDS.
The law in question, Arkansas Act 710, prevents state entities from contracting with private companies unless a provision is included that the company “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel”. For the purposes of Act 710, “boycott of Israel” is defined as “engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner”. The Arkansas Times challenged the law on the basis that it placed an unconstitutional condition on awarding government contracts and that it was a form of compelled speech.
On the first point, the Eighth Circuit delved into a discussion on the nature of expressive commercial conduct, and whether a boycott of Israel falls under protected speech. They held that expressive content needs to be clearly expressive to the audience without the need for explanation in order to understand the expressive nature of the behaviour. Boycotting Waze because it comes from Israel, for example, would likely be beyond the scope of boycott and protest actions that are constitutionally protected, because it is not clearly expressive conduct and requires detailed explanation.
On the second point, the Eighth Circuit found that the contract was not a form of compelled speech because while it does require contractors with the government to include a provision they would not otherwise include, it does not require them to make a public endorsement of Israel, nor prevent them from engaging in expressive conduct relating to the BDS movement and support thereof.
The law is only focused on “unexpressive commercial choices” with the rationale that commercial choices to boycott Israel could prevent access to technologies and other Israeli exports that will negatively impact the state.
The crux of the decision is that Act 710 is about commercial choices and not about speech. The Arkansas Times is not prevented from publishing articles that support the BDS movement, or from attending protests of Israel. However, they are prohibited from actions like refusing to contract with an Israeli firm because they are Israeli. Given that, in reality, few adherents to the BDS movement appear willing to give up their Intel-powered technology or SodaStreams, the contractual provision mandated by Act 710 likely has little effect on the day-to-day operations of the Arkansas Times and others who would like to engage in boycotts of Israeli products.
For now, Act 710 is here to stay. And while I am so happy about the outcome of this decision which I have been following for the last year, it is also important to be realistic when discussing anti-BDS laws.
Act 710 does not prevent a business from engaging in a boycott of Israel. Incidents like those that took place with Foodbenders in Toronto, where a restaurant owner posted #zioinistsnotwelcome and allegedly threw a bucket of water at Jewish customers, are not captured by laws like Act 710. Private individuals in states with anti-BDS laws are not prevented from refusing to engage with Israeli businesses or products. For sole proprietorships and other small businesses, they likely would not even be prohibited from entering into contracts with the state, depending on the nature of their businesses, as Act 710 takes effect for contracts worth over $1,000.
Based on the Eighth Circuit’s reading of Act 710, it is also unlikely that it would impact a BDS vote on campus. However, it could stop BDS-related action from going further. While students and faculty might be able to engage in anti-Israel speech or host ‘Israel Apartheid Week’ - and to be clear, these acts and events can be highly traumatic for Jewish students on campus, and make them feel unwelcome and unsafe - it would truly make their BDS resolution only words. Universities receive government funding from the state, and based on the circumstances that gave rise to the Arkansas Times’ lawsuit, which involved a contract with the University of Arkansas, they are subject to Act 710 in their commercial contracting decisions.
Is Act 710 all talk? Maybe. It likely depends a lot on the industry the state is contracting for - things like technology, medicine, and energy are more likely to engage with Israeli technology. But just like talk in the form of a BDS resolution can be harmful, anti-BDS laws can send a positive message to a historically persecuted minority. Even if the subject matter of Act 710 is rarely an issue that arises in a contract, it makes an important statement to the Jewish and Zionist communities. By recognizing that boycotts of Israel can involve discriminatory conduct and refusing to deal with contractors who are engaged in boycotts, Arkansas and other states with these laws are making a definitive statement that Jews count. These laws are a recognition of the legitimacy of Israel - something that should not be up for debate as freely as it often is - and that boycotts of Israel are not actions that align with the best interests of the people because of the ways they can limit access to new technologies and engage in discrimination.
This is unlikely to be the only challenge to an anti-BDS law in the coming years, but it sets a strong and important precedent for similar challenges in other states moving forward. The Eighth Circuit affirmed that not all forms of boycott fall under the ambit of protected speech, and that commercial boycotts of Israel are not protected by the existing jurisprudence on the first amendment. The law rarely moves in leaps and bounds, and while this decision is no exception to that norm, it is a valuable step forward in standing against anti-Zionism and other forms of Antisemitism.