The American Civil Liberties Union, a leading US rights group, on Thursday petitioned the Supreme Court to protect the right to boycott in response to a law barring boycotts of Israel.
The ACLU requested the Supreme Court overturn an Arkansas Law that requires companies to pledge not to boycott Israel in order to do business with the state.
The petition says the law violates First Amendment protections of the right to boycott and threatens Americans’ ability to protest.
The request was filed on behalf of the Arkansas Times, a Little Rock-based alternative weekly that said it was penalized by the state for refusing to sign the pledge.
The ACLU said the Arkansas law violates a 1982 Supreme Court decision that upheld the First Amendment right of Black people in Mississippi to boycott businesses in a protest for racial equality.
The 8th US Circuit Court of Appeals ruled in June that the law does not unconstitutionally infringe on free-speech rights. The full St. Louis-based court’s decision overturned a three-judge panel’s ruling last year that the law violated contractors’ free-speech rights.
“America was founded on political boycotts, and boycotts are a powerful way to speak and create change,” said Holly Dickson, executive director of the ACLU of Arkansas. “This state legislative majority wanted the government to have power to force people to relinquish their First Amendment rights or pay a penalty, and that is a dangerous step backward for our rights.”
In its plea for the Supreme Court to take up the case, the ACLU called the 8th Circuit Court’s ruling a “radical departure” from a Supreme Court precedent that an NAACP boycott of a Port Gibson, Mississippi, hardware retailer was constitutionally protected speech, expression, and assembly.
That decision established that “politically-motivated consumer boycotts are fully protected by the Constitution,” the ACLU said. “Now, that long-standing precedent has been called into question.”
The rights group also noted Americans’ tradition of boycotts dating to the Boston Tea Party. Twenty-eight states have enacted laws requiring government contractors to pledge they will not boycott Israel.
“These laws affect people from all walks of life, and they violate our right to participate in political boycotts — a right on which this nation was founded,” the ACLU said.
The Arkansas Times said it was financially penalized in an advertising agreement with a state college due to the law. The news company does not boycott Israel, but refused to sign the pledge on principle.
“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,” publisher Alan Leveritt said in a New York Times op-ed.
The Arkansas Times, represented by the ACLU, sued to overturn the law. They lost the case before the 8th US Circuit Court of Appeals earlier this year. The petition announced Thursday seeks to overturn the lower court’s decision.
Several federal courts have already shot down Israeli boycott laws, saying they violate the First Amendment.
The petition filed Thursday argues that exempting some political boycotts “gives states a blank check to selectively penalize boycotts that express disfavored messages.”
The group said other special interest groups representing firearms, mining and fossil fuels are following suit by pushing anti-boycott laws to stifle protest.
“If the court does not step in, a form of protest dating back to the American Revolution itself will remain in jeopardy,” the ACLU said.
The state laws have come under fire before. But these were allowed to be enforced after lawmakers narrowed the requirement to apply only to larger contracts. The Arkansas law applies to contracts worth $1,000 or more.
In 2019, a child speech pathologist in Texas lost a contract with a school district because she refused to sign, sparking outrage over the law.
In 2017, a teacher in Kansas was barred from working with a state education program because she refused to sign a pledge against Israeli boycotts, and in 2018, an Arizona lawyer challenged the state’s law when he was required to sign in order to work with incarcerated people.
The ACLU supported the Kansas teacher and Arizona lawyer and protested the boycott laws in 2017 and 2018.
Supporters of Israel boycotts and the Boycott, Divestment and Sanctions (BDS) campaign say the tactic is a non-violent way to pressure Israel over its treatment of Palestinians.
Opponents say boycotts unfairly single out the Jewish state, seek its destruction and often mask antisemitism.
The anti-boycott laws have become an effective weapon on the battlefield for Israeli advocacy groups in the US in recent years. Ben & Jerry’s faced massive financial blowback after announcing a boycott of the West Bank last year as states withdrew hundreds of millions of dollars from the company. The ice cream maker is now fighting its parent company over the boycott in US courts.
Citing its anti-boycott law, Arizona last year sold off millions of dollars in Unilever bonds over subsidiary Ben & Jerry’s decision to stop selling in the West Bank.
Republican state political leaders have also repeatedly targeted the multibillion-dollar investment firm Morningstar over alleged anti-Israel bias by one of its subsidiaries.