I served as the state solicitor general who successfully defended Arkansas’s law barring state contractors from engaging in antisemitic commercial boycotts. It was one of the most significant victories of my public-service career—and one that is even more important in the post-Oct. 7 world. It also established principles relevant to the latest controversy over antisemitic activity on college campuses.
Broadly speaking, Arkansas’s law requires those doing business with the state to certify that they don’t refuse to do business with parties solely because they’re somehow affiliated with Israel. Similar laws exist in dozens of states, all targeted at combating the dark web of antisemitic boycotts. Indeed, as the German parliament explained in 2019, the contemporary antisemitic boycott “movement’s ‘Don’t Buy!’ stickers on Israeli products inevitably awake[n] associations with the Nazi slogan.”
After Arkansas adopted its law, the Arkansas Times, an alternative media group that periodically ran state advertisements, refused to agree that it would not boycott Israel. It therefore lost its state contract. It sued, claiming that Arkansas’s law violated its rights to free speech.
I disagreed, arguing that declining to buy something, which is all boycotting really is, is neither speech nor inherently expressive conduct. It’s commercial activity, and commercial activity isn’t protected by the First Amendment. Moreover, as I argued, this principle is hardly a novelty: It’s the same reason that courts have long recognized that the First Amendment doesn’t shield refusals to do business based on race.
The federal trial court in the state’s capital of Little Rock agreed with me and dismissed the lawsuit. The Arkansas Times appealed and convinced a divided federal court of appeals to reverse the trial court’s decision. Not deterred, I asked the entire St. Louis-based federal court of appeals to review that decision—something that very rarely happens.
However, the full court agreed. A supermajority of the court then ruled in Arkansas’s favor, upheld our law and dismissed the lawsuit. The Arkansas Times then asked the U.S. Supreme Court to review the case. The Supreme Court denied that request without dissent, ending the effort to block Arkansas’s law.
Arkansas’s victory was and remains the leading decision in a nationwide wave of challenges brought by the Council on American-Islamic Relations (CAIR) and the American Civil Liberties Union (ACLU) against state anti-BDS laws. Most legal commentators and national media bet against us. Yet Arkansas took a stand and established that governments can refuse to do business with those who discriminate.
Two years later, that principle is at the center of the latest clash over taxpayer funding and antisemitism. Last year, the Trump administration threatened to freeze—and in some cases, froze—federal grants to universities that failed to protect Jewish students on campus. Critics claim that this unlawfully stifles free speech; supporters argue that failing to protect students isn’t expression.
Arkansas’s case establishes a baseline for resolving that dispute, reaffirming that the government can condition public benefits on an agreement not to engage in certain conduct. For onlookers concerned about antisemitic discrimination, the key point is that—just as in Arkansas’s case—the government’s ability to prevail depends on showing it has regulated conduct rather than expression.
