Boycotts Aren’t Protected Speech, Rules Appeals Court

Boycotts aren’t protected speech, says federal court. The U.S. Court of Appeals for the 8th Circuit has upheld an Arkansas law saying public contractors can’t boycott Israel. The decision is a dangerous incursion on free speech.

This isn’t a case where a private employer is making staff take a pro-Israel pledge—something that would be weird and not great but not a violation of the First Amendment. No, Arkansas’ law—and similar ones in more than 30 states—represents the government dictating how the owners of private companies that contract with public institutions can express their political concerns.

The case has “huge implications for free speech in America,” tweeted Julia Bacha, a filmmaker with media nonprofit Just Vision who recently made a documentary about anti-boycott legislation.

“Over the past few years, several Americans have sued their respective states for violating their First Amendment rights” with anti-boycott laws. “They include a speech therapist in Texas, a lawyer in Arizona, a filmmaker in Georgia, a math teacher in Kansas, and a news publisher in Arkansas,” notes Bacha. And “judges in Texas, Arizona, Georgia and Kansas have ALL found that the law was unconstitutional.”

The exception has been a case brought by Alan Leveritt, which is the case that made it to the 8th Circuit.

Leveritt is the publisher of the Arkansas Times. And while he isn’t personally involved in boycotting Israel, he sees such requirements as a dangerous development. He brought his case after being asked by the University of Arkansas as a condition of it continuing to advertise in the paper to certify in writing that the Times was not involved in boycotting Israel.

“It was puzzling. Our paper focuses on the virtues of Sims Bar-B-Que down on Broadway — why would we be required to sign a pledge regarding a country in the Middle East?” wrote Leveritt in The New York Times last year. The answer:

In 2017, Arkansas pledged to enforce support for Israel by mandating that public agencies not do business with contractors unless those contractors affirm that they do not boycott Israel. The idea behind the bill goes back 16 years. In 2005, Palestinian civil society launched a campaign calling for “boycott, divestment and sanctions against Israel until it complies with international law and universal principles of human rights.” Around the world, Boycott, Divestment and Sanctions, or B.D.S., as it became known, gained momentum. In response, Israel and lobbyists have used multiple strategies to quash the movement. In the United States, one such strategy took the form of anti-B.D.S. bills. Currently, more than 30 states have provisions on the books similar to Arkansas’s.

It soon became clear that The Arkansas Times had to answer our advertiser. Though boycotting Israel could not have been further from our minds and though state funding is a significant source of our income, our answer was no. We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And as journalists, we would be unworthy of the protections granted us under the First Amendment.

And so, instead of signing, we sued to overturn the law, represented by the American Civil Liberties Union, on the grounds that it violates the First and 14th Amendments. We are still fighting it.

After losing in district court, Leveritt and the ACLU appealed to the 8th Circuit—and won, with a three-judge panel deciding in their favor.

But the state of Arkansas asked for a rehearing en banc, meaning the case would be heard by all of the 8th Circuit’s judges. The state’s request was granted, and now the court has ruled for the state.

Arkansas’ anti-BDS law prohibits “purely commercial, non-expressive conduct,” wrote Judge Jonathan A. Kobes in the court’s opinion. “It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Isr