Almost every state in the country has considered legislation designed to restrict the right to participate in a boycott. The motivation behind these bills is no secret: it is to undermine the BDS movement – a campaign launched by Palestinian civil society urging Boycotts, Divestment, and Sanctions against Israel until the country complies “international law and universal principles of human rights.”
DRAD believes that boycotts are protected by the First Amendment (and the Supreme Court agrees) and are a vital tool for peaceful dissent. So, since 2014, we’ve worked to defeat these “anti-boycott bills.”
Unfortunately, 32 states have enacted such legislation, including Arkansas. The law in Arkansas, like that in many other states, requires that state contractors sign a pledge promising not to boycott Israel. And that has made Alan Leveritt angry. Leveritt is the founder and publisher of The Arkansas Times, and he’s suing the state. Yesterday, the NY Times published an important op-ed by Mr. Leveritt, We’re a Small Arkansas Newspaper. Why Is the State Making Us Sign a Pledge About Israel?
He recounts how the state law impacted him:
“At The Arkansas Times, a publication I founded 47 years ago, our pages focus on small-scale local issues, like protecting Medicaid expansion from the predations of our state legislature and other elements of Arkansas politics, history and culture. So I was surprised when in 2018 I received an ultimatum from the University of Arkansas’s Pulaski Technical College, a longtime advertiser: To continue receiving its ad dollars, we would have to certify in writing that our company was not engaged in a boycott of 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?”
While the situation was a bit absurd – The Arkansas Times had no intention of boycotting Israel, Leveritt felt that signing the pledge would have violated their rights and principles. He refused to sign.
“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.”
In Arkansas, Leveritt explains, the state legislature “is dominated by conservative evangelicals, such as the former Senate majority leader, Bart Hester,” who authored the state’s anti boycott bill. But these types of laws have passed all over the country.
“These types of laws are not restricted to states in which fundamentalist Christians hold sway. In 2016, California passed a law requiring large contractors working with a state agency to certify that they will not discriminate against Israel, and Andrew Cuomo, as governor of New York, signed an executive order that compels state entities to divest money and assets from a list of organizations regarded by the state as participating in the boycott. Senator Chuck Schumer of New York proposed national anti-boycott legislation.”
The wave of anti-boycott legislation has support across the political spectrum. It’s a deeply unprincipled stand.
“Let’s be clear, states are trading their citizens’ First Amendment rights for what looks like unconditional support for a foreign government,” Leveritt asserts.
And, the anti-boycott framework is already being copied to undermine other movements that progressives might be inclined to want to protect. “Texas passed two laws that went into effect on Sept. 1 — one prohibiting state agencies from conducting business with contractors that boycott fossil fuels and another preventing agencies from contracting with businesses that boycott firearm companies or trade associations.”
So Leveritt’s lawsuit is vitally important. He recounts the progress thus far:
“When our case reached the Federal District Court in 2019, the state argued that boycotting was not political speech but rather an economic exercise and therefore subject to state regulation. We found that argument absurd. After all, our nation’s founding mythology includes the boycott of tea. Since then, boycotts have repeatedly been used as a tool of political speech and protest, from the Montgomery bus boycott to end segregation to the Delano grape strike protesting exploitation of farmworkers. University students throughout the country engaged in anti-apartheid boycotts of and divestment from South Africa. In 1982, the right to boycott as a method of collective political speech was upheld by a unanimous Supreme Court ruling in N.A.A.C.P. v. Claiborne Hardware Company.”
“And yet U.S. District Judge Brian Miller ruled against us. We appealed to the Eighth Circuit — and won — before a three-judge panel in February. But on June 10, a rehearing by the full Eighth Circuit Court was ordered. That hearing occurred on Sept. 21, and a decision is expected very soon. Frankly, we’re concerned it won’t go our way.”
“If we lose in the Eighth Circuit, our last hope is the Supreme Court. Ours isn’t the only case out there. In 2018 and 2019, federal courts in Texas, Arizona and Kansas ruled against their states’ anti-B.D.S. laws. If the Supreme Court rules against us, the other favorable rulings could be in jeopardy. Also concerning is that these states have since amended their anti-boycott laws, narrowing their scope so they apply only to companies with a large number of contractors and to public contracts that are more than $100,000 but without addressing what we see as the laws’ fundamental unconstitutionality.”
“What the outcome of The Arkansas Times’s lawsuit will be is unclear. One thing, however, remains crystal clear: These anti-boycott laws, allowing government to use money to punish dissent, will encourage the creation of ever more repressive laws that risk strangling free speech for years to come.”
Read the full op-ed at the NY Times: https://www.nytimes.com/2021/11/22/opinion/israel-arkansas-bds-pledge.html