States can legally refuse to do business with companies that engage in discriminating boycotts based on national origin, according to a recent ruling. Laws enacted in 36 states banning boycott, divestment and sanctions (BDS) policies have been ruled constitutional by the Federal Court of Appeals 8th Circuit.
These “anti-BDS” laws were challenged by the Arkansas Times weekly newspaper. The newspaper company refused to certify that it would not boycott Israel, citing free speech. As a result of the company’s refusal, the University of Arkansas Board of Trustees (UABT) discontinued ads in the newspaper in accordance with the state’s anti-discrimination law. The newspaper then sued members of the UABT.
The ruling was decided 9-1, and the 8th Circuit Court of Appeals is considered the highest-level court yet to rule on state anti-BDS laws. The Arkansas law is worded similarly to anti-BDS laws in 20 of the states whose laws affirm that they are meant to protect the commercial interests of those doing business with Israeli companies. This case marks the first time such a law was evaluated by a full Federal Court of Appeals.
Arkansas argued, in part, that firms making “discriminatory decisions on the basis of national origin” harm their own commercial soundness, making such a company an inferior partner. This language, explicitly characterizing boycotts of Israel as a form of racist bigotry, was incorporated by the court in its decision.
Attorneys for StandWithUs authored an amicus brief filed in the case—Michal Baum and Stephen Blaylocks of Hunton Andrews Kurth LLP; Jonathan M. Rotter of Glancy Prongay & Murray LLP; and Aaron Stiefel and Avishai D. Don of Arnold & Porter Scholer LLP.
StandWithUs’s amicus brief stated: “While masked as a critic of Israel, BDS’s true character is evidenced by its use of hateful anti-Semitic tropes, images and chants; its engagement in harassment, demonization and delegitimization; and its application of double standards.” Since 2001, the BDS movement has sought to ostracize and cripple Israel through boycotts. Its co-founder, Omar Barghouti, opposes a two-state solution, let alone “a Jewish state in any part of Palestine,” and supports “armed resistance.”
“We applaud Attorney General Leslie Rutledge and Solicitor Nick Bronni and the citizens and government of Arkansas for fighting to uphold the state’s refusal to contract or invest with parties engaging in commercial discrimination against Israel,” said Israel-American Council (IAC) for Action Chairman Shawn Evenhaim.
“We also applaud Rep. Jim Dotson and Sen. Bart Hester for their many years of diligent work in this key area of public policy. In passing Arkansas’ original law, the state’s legislature was perfectly clear in its intent, predicating passage on the recognition that commercial discrimination and boycotts of Israel are overwhelmingly antisemitic in nature and are not political. That’s why the underlying law passed with such a high level of co-sponsorship and bipartisan support.”
“We are pleased to have played a leading role in helping to create and uphold Arkansas’ anti-BDS law. States like Arkansas have created laws that carefully regulate commercial activity, and not the conduct of private speech,” said IAC for Action’s Executive Director Joseph Sabag, who drafted the state’s anti-BDS law.
“Anti-BDS laws are narrowly tailored, anti-discrimination laws, similar to many other anti-discrimination laws that protect, among other categories of people, women, racial minorities and LGBTQ individuals. We are prepared to continue our vigorous efforts in this case should the plaintiff choose to appeal to the Supreme Court of the United States,” Sabag added.
“Boycotts of Israel do not merely reflect classic hatred against Jews, but also attempt to damage Israel’s American business partners, including the State of Arkansas,” said Coalition for Jewish Values President Rabbi Yoel Schonfeld.
By Jewish Link Staff