(January 24, 2019 / JNS) A federal judge upheld an Arkansas law that forbids state agencies from investing in or contracting with companies that boycott Israel.
Chief U.S. District Judge Brian Miller threw out a lawsuit filed by the American Civil Liberties Union on behalf of the Arkansas Times, claiming that the measure violated the First Amendment.
“It [the Times] may even call upon others to boycott Israel, write in support of such boycotts, and engage in picketing and pamphleteering to that effect,” wrote Miller. “This does not mean, however, that its decision to refuse to deal, or to refrain from purchasing certain goods, is protected by the First Amendment.”
The judge added, “Israel in particular is known for its dynamic and innovative approach in many business sectors, and therefore a company’s decision to discriminate against Israel, Israeli entities, or entities that do business with or in Israel, is an unsound business practice, making the company an unduly risky contracting partner or vehicle for investment.”
Although the Times does not currently engage in or advocate for BDS, the outlet refused to sign a pledge never to boycott Israel after one of its advertisers, the University of Arkansas-Pulaski Technical College, requested they do so in accordance with the state law. In response, the school ceased business with the paper.
Arkansas Attorney General Leslie Rutledge and StandWithUs applauded Miller’s ruling.
“Attorney General Rutledge is pleased with Judge Miller’s ruling dismissing the Arkansas Times’ meritless lawsuit and upholding state law prohibiting discrimination against Israel, an important American ally,” Amanda Priest, spokesperson for Rutledge, told the Associated Press.
“We commend the wisdom of the judge’s decision,” said StandWithUs CEO Roz Rothstein. “As the court recognized, taxpayers need to be protected from being complicit in discrimination, which both undermines state policy and harms its economy.”
However, ACLU Arkansas legal director Holly Dickson told the Associated Press: “We disagree with the district court’s decision, which contradicts two recent federal court decisions and which would radically limit the First Amendment right to boycott.”
The ACLU has won rulings in federal courts in both Kansas and Arizona, blocking those states from enforcing their anti-BDS laws. While the ACLU claims that it does not have a position on BDS, it argues that the laws infringe on First Amendment rights.
Eugene Kontorovich, a legal expert with the Kohelet Policy Forum and George Mason Law School, told JNS that the decision in Arkansas “correctly concluded what Supreme Court precedent clearly says: a company’s decision to refuse to do business with a particular group is simply not speech at all, it is commercial conduct.”
“The false claims that such laws violate the Constitution were just a veil for the ACLU and other progressives, who for now are shy to admit they oppose regulating BDS as policy matter,” he said.
Marc Greendorfer, the president of the Zachor Legal Institute, which has worked on crafting and defending the state anti-BDS laws, told JNS that “we applaud the Arkansas district court judge for his honesty and fidelity to the Constitution.”
“Any court that does its research in the issue has to arrive at the same conclusion that the Arkansas court did. BDS movement activity is discrimination and anti-discrimination laws generally comport with the First Amendment. Further, BDS is not a civil rights movement and the caselaw on civil rights boycotts is not applicable to BDS boycotts.”
Greendorfer said that he expects the Arkansas ruling will have an affect on the other BDS cases in the federal courts, especially the Arizona law, which is currently being appealed in the Ninth Circuit.
“We expect that the Ninth Circuit, currently hearing the appeal of the Arizona lower court’s grant of a preliminary injunction, will follow the legal analysis set forth in the Arkansas court’s order and find the Arizona law to be constitutional as well.”