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the pulpitBoycott, Divestment & Sanctions (BDS)

Boosting BDS: A federal court decision that should be vacated

Within 14 days of the panel’s decision, Arkansas’s Attorney General may request that the full array of active Circuit Judges of the 8th Circuit review the decision in what lawyers call an “en banc rehearing.”

Arkansas State Capitol in Little Rock. Credit: Wikimedia Commons.
Arkansas State Capitol in Little Rock. Credit: Wikimedia Commons.
Nathan Lewin
Nathan Lewin

A federal appeals court has just issued a pernicious constitutional ruling that should promptly be voided. In March 2017, the Arkansas legislature, by a unanimous vote of its Senate and a 69-3 vote of its House, passed a law designed to deter boycotts against Israel. Copying the text of a law enacted in Georgia in April 2016 (also adopted by the Texas legislature in May 2017 and by several other states), Arkansas law requires any company contracting with the state government to certify that it does not engage in a boycott of Israel. “Boycott of Israel” is defined in the law as “engaging in refusals to deal, terminating business activities or other actions that are intended to limit commercial relations with Israel.”

The words “other actions that are intended to limit commercial relations with Israel,” read in context, obviously mean other forms of business conduct. Yet a panel of the Court of Appeals for the 8th Circuit, headquartered in St. Louis, has just declared the Arkansas law unconstitutional because, says the court’s opinion, it violates the free-speech guarantee of the First Amendment. Two of the three judges who heard the case interpreted the words “other actions” as preventing a company from not only taking commercial steps against Israel but also “post[ing] anti-Israel signs, donat[ing] to causes that promote a boycott of Israel, encourag[ing] others to boycott Israel or even publicly criticiz[ing] the Act.” Because the law, as two judges broadly construed it, sweeps so far, the court ruled that the law is invalid because it constitutes governmental suppression of free expression.

The dissenting judge said that the Arkansas law restricts only commercial practice, not the speech that the majority hypothesized. He invoked a rule of statutory interpretation that is taught to first-year law students—ejusdem generis. (It is also one of the rules enumerated by the rabbis of the Mishna for deriving Jewish law from biblical texts.) The words “other actions,” he said, are “a catch-all for commercial activities that do not fit the first two categories but have the same purpose.”

The judges knew the importance of the case. The official decision published on Feb. 13 lists 23 friends of the court endorsing the constitutional challenge to the anti-BDS law (including the Council on American Islamic Relations, Jewish Voice for Peace, Palestine Legal and J Street) and 23 amici curiae urging that the law be sustained (including nine states, the American Jewish Committee, the Orthodox Union, the Brandeis Center, StandWithUs and Shurat HaDin). Even the two judges who found a defect in the Arkansas law rejected the broad claim made by the BDS supporters that anti-BDS laws violate a 1982 Supreme Court precedent that granted free-speech status to a civil-rights boycott of racist merchants in Mississippi. This part of the court’s decision helps sustain the legal theory underlying the anti-BDS laws.

But the majority flouted bedrock rules of statutory construction to find the Arkansas law unconstitutional. The legal rule that statutes should be construed to avoid serious constitutional problems dates back to an 1804 decision by Chief Justice John Marshall. The Supreme Court said in 1988 that this principle of how judges must read a law is “beyond debate.” The 8th Circuit court did the opposite. Rather than reading the law as limited to business practices and thereby avoiding a constitutional issue, the judges extended Arkansas’ law beyond its natural meaning so as to bring it into potential conflict with a constitutionally protected right.

Is there is a remedy short of review by the U.S. Supreme Court, which already has a heavy docket of controversies on its plate and may be reluctant to wade into this one? Within 14 days of the panel’s decision, Arkansas’s Attorney General may request that the full array of active Circuit Judges of the 8th Circuit review the decision in what lawyers call an “en banc rehearing.” The 8th Circuit’s current line-up is reason to be optimistic if Arkansas files such a motion.

The Federal Rules authorize en banc review of a case that presents “one or more questions of exceptional importance”—a standard that fits the 8th Circuit’s decision.

Nathan Lewin is a criminal defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.

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