US Supreme Court keeps Arkansas anti-BDS law in place, declining to intervene

Justices reject appeal on behalf of an Arkansas newspaper that objected to a state law that reduces fees paid to contractors who refuse to sign pledge not to boycott Israel

Light illuminates part of the Supreme Court building at dusk on Capitol Hill in Washington, November 16, 2022.  (AP Photo/Patrick Semansky)
Light illuminates part of the Supreme Court building at dusk on Capitol Hill in Washington, November 16, 2022. (AP Photo/Patrick Semansky)

WASHINGTON — The US Supreme Court on Tuesday refused to step into a legal fight over state laws that require contractors to pledge not to boycott Israel.

The justices rejected an appeal on behalf of an alternative weekly newspaper in Little Rock, Arkansas, that objected to a state law that reduces fees paid to contractors that refuse to sign the pledge.

The full federal appeals court in St. Louis upheld the law, overturning a three-judge panel’s finding that it violated constitutional free speech rights.

Similar measures in Arizona, Kansas and Texas were initially blocked by courts, prompting lawmakers to focus only on larger contracts. Arkansas’s law applies to contracts worth $1,000 or more.

Wednesday’s ruling was a major victory for pro-Israel activists who have pushed around 30 states to adopt so-called “anti-BDS” laws — intended to strike back against the Boycott, Divestment, Sanctions movement targeting Israel — in recent years.

Such laws have been heavily opposed by civil liberties groups and press freedom advocates, who say they violate free speech. Federal courts have previously ruled that similar anti-boycott state laws in Georgia, Arizona, Kansas and Texas are unconstitutional.

Illustrative photo of signs calling for the boycott of Israel at an anti-Israel protest in San Francisco, April 2011. (CC BY-dignidadrebelde, Flickr)

In siding against the Arkansas weekly last June, the Appeals court found that an anti-boycott contract provision does not infringe on the signer’s free speech rights because it “does not require them to publicly endorse or disseminate a message.” Instead, the court said, the clause requests “compliance” with a financial regulation — which the court says is a form of “noncommunicative” speech not protected by the First Amendment. The Eighth Circuit is considered to have a conservative makeup.

Arkansas had introduced the law in 2017, and the public University of Arkansas was sued by Little Rock-based alt-weekly The Arkansas Times in 2018. The paper had sued the university because its Pulaski Technical College affiliate, a regular advertiser with the paper, had refused to continue advertising unless The Arkansas Times signed the anti-boycott pledge, citing the state law.

“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,” Arkansas Times publisher Alan Leveritt wrote in a New York Times op-ed last year explaining his paper’s decision. The paper was represented in court by an attorney from the American Civil Liberties Union, and its case was featured in the recent documentary “Boycott,” which followed legal battles over state anti-BDS laws.

The lawsuit was dismissed by a district court judge in 2019, who ruled that the boycott ban was not a First Amendment violation because it only extended to the paper’s commercial activities, not its editorial content. The newspaper appealed the decision, and a three-judge panel for the Eighth Circuit Court of Appeals ruled last year that the law was unconstitutional before the full court granted the state’s request to rehear the case.

“We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech,” the court said in its ruling at the time.

Tuesday’s Supreme Court decision was hailed by the American Jewish Committee, which has long advocated for anti-BDS bills. “The Supreme Court has confirmed our view that state statutes opposing BDS are indeed constitutional,” AJC said in a statement. “The primary aim of the BDS movement is to eliminate the State of Israel. The court’s action gives a boost to efforts to put a stop to the pernicious effort to isolate Israel economically and morally.”

JTA contributed to this report

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