newsBoycott, Divestment & Sanctions (BDS)

Boycotts not protected speech in US, new research argues

The Supreme Court is mulling whether to hear a BDS case; however it rules could present a mixed bag for advocates and opponents.

U.S. Supreme Court building. Photo by Brandon Bourdages/Shutterstock.
U.S. Supreme Court building. Photo by Brandon Bourdages/Shutterstock.

If it looks and quacks like speech, don’t let that fool you. It may be a boycott.

The U.S. Supreme Court is weighing whether to hear Arkansas Times v. Waldrip, which hinges on a question that is slipperier than it sounds: Is there a constitutional right to boycott?

More specifically, did Arkansas violate the rights of a Little Rock monthly when the state dangled the possibility of public-funded advertisements if and only if the newspaper signed an agreement refusing to boycott Israel?

Josh Halpern, an academic fellow and lecturer at Harvard Law School, and Lavi Ben Dor, a D.C. attorney, argue in a forthcoming paper that boycotts are not speech, and thus the state did not violate the paper’s rights.

The chances are good the Supreme Court will defer hearing the case with a decision to that effect likely coming this month, Halpern told JNS. Active litigation is pending in several appeals courts, including in Texas and Georgia. “Why not wait and see what those courts do?” he said.

A federal appeals court ruled last that Arkansas law does not violate First Amendment rights by requiring state contractors to forswear, for the duration of the contract, boycotting Israel or entities that do business with Israel.

The Arkansas paper has not stated that it supports boycotting Israel, but a state college has advertised in the paper, which placed the latter in the position of having to decide whether to sign the agreement.

BDS opponents should not necessarily start celebrating, however. If boycott is not protected speech, then boycotting boycotts could also remain unprotected. In a different political climate, a state might require entities that want its business to sign agreements stating that they will boycott Israel.

“What’s sauce for the goose is sauce for the gander in the law,” Halpern said. “The law aspires to neutral principles that apply equally.”

Thirty-five U.S. states prohibit contractees from boycotting Israel. In Arkansas, a business must certify in writing that it won’t boycott the Jewish state before being eligible for a state contract, according to Halpern. The Arkansas newspaper declined to do so on principle.

Further examination required

Halpern and his co-author researched and penned what he believes to be the first thorough, historical analysis of the question of whether politically-motivated boycotts constitute free speech. “This is an area that is very much underexplored and will require further scholarly examination,” he said.

Since colonial times, state actors have viewed boycotts not as speech but as ways to place economic pressure to effect change. That was the case with boycotts of Apartheid-era South Africa and remains true of present-day Russia, Halpern said.

Although boycotts could be weaponized against Israel, Halpern said that states have tailored laws carefully. The laws do not silence voices that criticize Israel but instead promote economic engagement with a key U.S. ally and prevent discrimination against Israeli businesses. The laws only pertain to businesses of a certain size and contracts above a certain threshold.

“They’re very surgical,” he said. “They’re targeted only at the boycott itself.”

Joseph Sabag, executive director of the Israel American Council for Action, wrote and led advocacy for South Carolina’s anti-BDS law–the nation’s first–in 2015, according to the IAC website. Sabag told JNS that Halpern and Ben Dor’s scholarship would “likely be taken into account” if the Supreme Court accepted the case.

The article “proves that from the time of the constitutional founders to the present day, government officials have consistently treated boycotts as economic conduct subject to governmental control, and not as expression presumptively immune from state interference,” he said.

Both supporters and critics of the BDS movement seek a decisive Supreme Court ruling “but would likely find a split decision waiting for them in the end,” Sabag said. (Per 2022 Pew Research Center data, few Americans have heard of the boycott Israel movement, and only 5% support it, including 2% who are strongly supportive.)

If the Supreme Court declines to hear the case, that would not be kicking the boycott-can down the road, given the “great difficulty in cultivating new plaintiffs,” according to Sabag.

“This may be the only time such a BDS case is presented to the Supreme Court in the foreseeable future,” he said.

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