Supreme Court Allows Arkansas Law Cracking Down on Anti-Israel Boycotts to Stand

Jeff Zymeri
·3 min read
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On Tuesday, the Supreme Court declined to revive a newspaper’s challenge to an Arkansas law requiring state government contractors to pledge not to boycott Israel, handing a victory to opponents of the Boycott, Divestment, Sanctions (BDS) movement.

In 2018, the American Civil Liberties Union asked a federal judge to strike down the law on behalf of the Arkansas Times — an alternative weekly newspaper in Little Rock. The newspaper had previously signed an advertising contract with a technical college in the state, but in order to renew that contract, the Times would have been required to sign the pledge.

The statute only applied if certain conditions were met. It did not apply if the dollar value of the contract fell below $1,000. Additionally, government contractors could avoid signing the pledge if they agreed to reduce their fees by 20 percent.

The newspaper argued that the law was an unconstitutional violation of freedom of speech, imposing an “ideological litmus test” on government contractors.

After the district court judge dismissed the case in 2019, the newspaper found success in front of a three-judge Eighth Circuit Court of Appeals panel, which found the requirement unconstitutional. However, last year, the Eighth Circuit, sitting en banc, reversed that ruling.

The legal issue the courts have been confronted with is whether “boycotting Israel” indeed prohibits protected expressive conduct, or whether it only covers unexpressive commercial conduct.

The full Eighth Circuit panel sided with the latter argument and thus the state. “Under Arkansas’s canons of statutory interpretation, we think the Arkansas Supreme Court would read [the law] as prohibiting purely commercial, non-expressive conduct,” Judge Jonathan Kobes wrote in the court’s opinion.

“[The law] does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel,” continued Kobes. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

The Supreme Court turned down the opportunity to wade into this legal fight, allowing the Eighth Circuit decision to stand.

In a blog post, law professor Eugene Volokh explained that the Supreme Court declining review was “something of a victory for the anti-BDS forces.” However, he cautioned that no nationwide precedent has been set.

“This isn’t a judgment on the merits by the Supreme Court…the result may end up being different in other circuits, and the Court might yet revisit the question in the future, especially if some other circuit does disagree with the Eighth,” Volokh wrote.

Senator Tom Cotton was less guarded in his reaction. “A great win for Arkansas and America in the fight against the anti-Semitic BDS movement,” Cotton wrote on Twitter.

The Arkansas Times also released a statement. “We are obviously disappointed at the news today from the US Supreme Court,” publisher Alan Leveritt said.

Leveritt added that since the newspaper had initiated the lawsuit, they had made many changes to their “business model, relying more on paid online subscriptions and donations from our readers and less on advertising.”

Aside from Arkansas, 34 other states have adopted laws, resolutions or executive orders that can be classified as anti-BDS measures.

Prior court decisions that have gone against such measures have prompted lawmakers to only focus on larger contracts.

At present, the Fifth Circuit Court of Appeals is considering a challenge to Texas’ anti-BDS law, increasing the likelihood that the Supreme Court will once again be confronted by this debate.

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