Court keeps anti-BDS law in place, striking down earlier decision

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A federal appeals court in St. Louis has upheld an Arkansas court decision that required all state contractors to pledge not to boycott Israel. The ruling overturns an earlier decision made last year by a panel of three judges from the same court, the 8th U.S. Circuit Court of Appeals

The decision is seen as a major setback for the anti-Israel Boycott, Divestments, Sanctions (BDS) movement and comes after the Arkansas Times sued in 2019 following the establishment of a 2017 state law requiring public contracts to include “a certification that the contractor will not ‘boycott’ Israel,” court documents state. 

The Arkansas Times argued the law violated its First Amendment rights

BDS espouses anti-Israel policies. Anti-BDS laws prohibiting the government from contractual or investment opportunities with companies that discriminate against individuals with Israeli ties have steadily been growing across the country.

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A federal appeals court gave a victory to anti-BDS advocates by striking down an earlier court decision that claimed an Arkansas law was unconstitutional. 

A federal appeals court gave a victory to anti-BDS advocates by striking down an earlier court decision that claimed an Arkansas law was unconstitutional.  (AP Photo/Craig Ruttle)

Eugene Kontorovich is an expert on international law and director of the Scalia Law School’s Center for the Middle East and International Law at George Mason. 

“Progressive groups have used bogus constitutional arguments as pretexts to protect the discriminatory treatment of primarily Jewish groups,” Kontorovich said in a statement to Fox News Digital. “Embarrassed to publicly defend BDS itself, they have claimed to oppose such laws out of legal scruple. (On Wednesday), that pretext has been removed, and Congress can move forward with confidence to pass federal anti-BDS legislation.” 

The law in question, Arkansas Act 710, prohibited state entities from engaging with private companies unless the contract included a certification that the company was not engaged in any forms of boycotts against Israel. The law applies to contracts of $1,000 or more, according to The Associated Press. 

The Arkansas Times and the University of Arkansas-Pulaski Technical College had previously engaged in a contract wherein the Times received ad revenue from the college. In 2018, the college asked the paper to sign a certification that the paper was not involved in anti-Israel boycotts. 

Still photo from a United States District courtroom. 

Still photo from a United States District courtroom.  (United States District Court for the Northern District of Illinois)

The publisher of the Arkansas Times, Alan Leveritt, wrote a New York Times opinion piece defending his position.

“We don’t take political positions in return for advertising,” Leveritt wrote. “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.”

The Arkansas Times then sued the college over the anti-BDS certification, arguing the certification violated the paper’s First Amendment rights in two ways — “by placing an unconstitutional condition on the award of government contracts and by compelling speech.”

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The Times sued for a preliminary injunction, which was then dismissed. The court determined that economic boycotts did not implicate the First Amendment as they were neither speech nor expressive conduct.

However, the decision was appealed and a divided panel on the 8th Circuit Court then ruled the certification requirement was unconstitutional

A businessman signing an electronic contract. 

A businessman signing an electronic contract.  (iStock)

“Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test,” said Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, representing the Arkansas Times during the case. 

The University of Arkansas-Pulaski Technical College argued the statute only dealt with expressive commercial decisions that do not fall under the First Amendment. Arkansas’ standard rules of statutory interpretation aligned with the state’s reading, according to court documents. 

The court ultimately ruled in favor of the college, writing that the Arkansas Supreme Court would interpret Act 710 as “prohibiting purely commercial, non-expressive conduct.” 

“We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech,” the court wrote.

Israeli flag flying over Jerusalem and the Temple Mount

Israeli flag flying over Jerusalem and the Temple Mount (iStock)

The appellate court ruled the certification did not ban the Arkansas Times from publicly criticizing or protesting the statute. The statute solely prohibited the paper from enacting economic decisions that would discriminate against Israel

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The court concluded by saying that, due to the inherent invisibility of the paper’s economic decisions to outside observers, the statute did not implicate the Times’ First Amendment rights. 

Other states, including Arizona, Kansas and Texas, have enacted similar measures to Arkansas’ law. Those too were initially blocked and later enforced after the requirements were narrowed to apply to larger contracts.  

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“This is an unequivocal victory against the racist BDS movement, underscoring that such anti-boycott laws are in no way a violation of the First Amendment and that states have the legal right to refuse to conduct business with those entities seeking to engage in such racist and discriminatory boycotts of Israel,” Arsen Ostrovsky, CEO of The International Legal Forum, told Fox News Digital.

Opponents of the law are expected to appeal the court’s decision, which could mean an eventual hearing at the U.S. Supreme Court.

The Associated Press contributed to this article.

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