US Federal Appeals Court upholds Arkansas law against Israel boycotts

Jewish groups praise court ruling.

By Sharon Wrobel, The Algemeiner

A U.S. federal appeals court on Wednesday ruled in favor of upholding an Arkansas law that forbids state agencies from contracting with companies that boycott Israel, on the grounds that it does not constitute an infringement of free speech.

“Today is a resounding victory for Arkansas’s anti-discrimination law and reinforces Arkansas’s relationship with our long-time ally, Israel,” said Attorney General Leslie Rutledge, whose office defended the state law, in a statement.

The 9-1 ruling by the full Court of Appeals for the Eighth Circuit reversed a February 2021 panel decision that the Arkansas anti-BDS law was unconstitutional.

Back in 2018, the Arkansas Times, represented by the American Civil Liberties Union (ACLU), filed a lawsuit after the University of Arkansas Pulaski Technical College withheld advertising business with the newspaper unless it signed a clause against boycotting Israel to conform with state law.

In the lawsuit, the Arkansas Times argued that the anti-BDS law passed in 2017, which requires public contracts to certify that contractors will not boycott Israel, violates the First Amendment by “placing an unconstitutional condition on the award of government contracts; and by compelling speech.”

Judge Jonathan Kobes wrote in the court’s opinion that the legislative motive for passing the 2017 law was “primarily economic.”

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

Following the court’s ruling, Brian Hauss, staff attorney for the ACLU Speech, Privacy and Technology Project, said that the next steps were now being considered.

“The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment is wrong and departs from this nation’s longstanding traditions,” Hauss said in emailed comments. “It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since.”

Mark Stern, chief legal officer for the American Jewish Committee — which joined a number of Jewish and pro-Israel groups in filing briefs supporting the state’s position — lauded the court’s decision as “the first appellate test of laws that combat the Boycott, Divest and Sanctions movement, whose primary aim is to eliminate the State of Israel.”

“As the court noted, Arkansas has broad power to regulate economic activity, and taking a position on a boycott does not inhibit free speech,” Stern commented in a statement.