Appeals court upholds anti-BDS law as ‘purely commercial’
Tubs of Ben & Jerry’s ice cream in a freezer at an Iceland Foods supermarket in the United Kingdom. Several American states have used laws meant to target boycotts of Israel to retaliate against the company’s decision to stop selling its products in the occupied West Bank. Photo by Getty Images
By Arno Rosenfeld June 22, 2022
The 8th Circuit Court of Appeals ruled Wednesday that an Arkansas law targeting boycotts of Israel did not infringe on free speech because it was intended to serve “a purely commercial purpose.” The case, which centered on a newspaper that lost state advertising revenue after refusing to a sign a pledge not to boycott Israel, is a major victory for pro-Israel organizations that have promoted these laws in state legislatures across the country.
“This decision is an important affirmation of the constitutionality of state anti-discrimination laws and clearly upholds the rights of states to refuse to support those who promote discrimination, especially antisemitism,” Marc Greendorfer, the founder of Zachor Legal Institute, said in a statement.
The ACLU, which represented the Arkansas Times in the case, announced plans to appeal to the Supreme Court.
“The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent,” Brian Hauss, the ACLU attorney on the case, said in a statement.
Arkansas is one of several states to pass laws meant to crack down on the Boycott, Divestment and Sanctions movement aimed at Israel. Those laws have been in the spotlight since Ben & Jerry’s, the ice cream manufacturer, announced its intention to stop selling ice cream in the occupied West Bank last summer. States including New York, Illinois and Florida have since moved public investments out of its parent company, among other measures.
While there have been several legal challenges to anti-BDS legislation, lawmakers have regularly amended the laws before courts could strike them down.
The 8th Circuit decision appears to be the first time that an appeals court has found that these laws do not violate the Constitution’s free speech protections. A full court ruled in favor of upholding the law, reversing the decision of a smaller panel of appeals court judges last year. In 2019, a district court judge dismissed the case, ruling that the law addressed the newspaper’s commercial activities and so did not violate the First Amendment.
In the decision handed down on Wednesday, Judge Jonathan Kobes wrote in the majority decision that the Arkansas law was intended to regulate only the economic activity of state contractors and not to place a government restriction on political speech.
“It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself,” wrote Kobes, who was appointed by former President Donald Trump. “It only prohibits economic decisions that discriminate against Israel.”
Jane Kelly, the lone judge appointed by a Democratic president on the 8th Circuit Court, wrote a dissent arguing that the Arkansas law was clearly focused on both economic actions and political expression by companies doing business with the state.
“It seems highly unlikely that a lay-contractor unfamiliar with this lawsuit would give the phrase ‘boycott of Israel’ the same limited definition the State now urges and the court accepts,” Kelly wrote. “Instead, any contractor who does not want to risk violating the terms of its contract might very well refrain even from activity that is constitutionally protected.”
The American Jewish Committee, which has campaigned for laws targeting BDS, hailed the decision as confirmation that such legislation does not violate the First Amendment.
Alan Leveritt, publisher of the Arkansas Times, said that his alternative newspaper has never sought to boycott Israel but objected on principle to signing what he viewed as a political pledge in order to receive advertising dollars from the state government. He said the decision not to sign the pledge, as required by Arkansas law, has hurt the publication financially but that publicity around the case had led supporters around the country to buy online subscriptions.
“We consider being banned from doing business with our state government for refusing to sign a pledge not to boycott Israel a ridiculous government overreach that has nothing to do with Arkansas,” Leveritt said in an email to the newspaper staff. “More importantly, in our particular case it requires the Arkansas Times to take a political position in return for advertising. We don’t do that.”
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