The U.S. Supreme Court declined on Tuesday, Feb. 21 to hear an appeal against an Arkansas anti-BDS law.
Some Israel supporters say it’s a conclusive victory for the legality of such laws, now in effect in over 30 states. Critics argue that the fight will go on, in an effort to force the high court to hear the appeal or to pressure state governments to more narrowly tailor legislation.
The Supreme Court turned back an appeal from the editor of the Arkansas Times, Alan Leveritt, after a federal appeals court upheld a state law requiring him to sign a pledge not to boycott Israel in order to qualify for advertising contracts from a state university. The Times was represented by the ACLU, which has taken up the mantle in a number of similar cases across the country.
A June decision by the 8th U.S. Circuit Court of Appeals stands as a result of the Supreme Court’s decision.
That 9-1 ruling in the case of Arkansas Times LP v. Waldrip reversed a ruling by a three-judge panel that the law was unconstitutional. It is the first full federal appeals court ruling on state anti-BDS laws.
The court ruled that Arkansas Act 710, called “An Act To Prohibit Public Entities From Contracting With and Investing in Companies That Boycott Israel; And for Other Purposes,” only regulates business activity, not expressive conduct, and thus raises no issues under the First Amendment.
The decision drew praise from several pro-Israel organizations.
“Elected officials, business leaders and anti-Israel activists should take note: The American people have spoken, and they are pro-Israel,” stated Christians United for Israel (CUFI). “CUFI applauds the Supreme Court’s unanimous decision to push back against the effort to use American taxpayer dollars to subsidize economic antisemitism.”
“[This] is a great day for the cause of justice,” said Kenneth L. Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. “The court put to rest the absurd notion that anti-BDS laws are incompatible with robust protections for the freedom of speech. Anti-Israel boycotts will now be seen for what they are: discriminatory conduct rather than political speech.”
Marc Stern, general counsel at the American Jewish Committee, stated that “the primary aim of the BDS movement is to eliminate the State of Israel. The court’s action gives a boost to efforts to put a stop to the pernicious effort to isolate Israel economically and morally.”
Eugene Kontorovich, a professor and director of George Mason University Scalia Law School’s Center for Middle East and International Law, said the Supreme Court decision “further demonstrates the falseness of claims that these measures harm constitutional values. … Groups that oppose such laws now have a heavy burden explaining how they are not simply providing cover for boycotts of Israelis.”
“The laws at issue are really nothing more than just garden variety anti-discrimination laws. And I think the ACLU needs to drop its double standard at this point,” attorney and policy specialist Joseph Sabag told JNS. Sabag, the executive director of Israeli-American Coalition for Action, led the drafting of anti-BDS legislation in a number of states, including Arkansas.
“It was a clear enough red line that [the court of appeals] drew, in distinguishing commercial conduct from expressive speech conduct, that there really wasn’t much of a question to be placed in front of the Supreme Court in the absence of a circuit split,” he said.
But that circuit split is exactly what the ACLU says it’s now gunning for in hopes of returning to the high court. A circuit split occurs when two courts of appeals reach conflicting outcomes in cases with similar legal parameters.
“I think the next step is to keep bringing this up in the circuit courts and see whether they agree with the 8th Circuit or not,” said Brian Hauss, a staff attorney with the ACLU Speech, Privacy, and Technology Project. Hauss represented the Arkansas Times in its case against the state. “We’re committed to keep fighting anti-boycott legislation in courts and legislatures throughout the country,” he told JNS.
Hauss pointed to a pair of pending cases which he said could give the BDS movement new life in the courts. The first is A&R Engineering vs. the City of Houston, which was brought by the anti-Israel Council on American-Islamic Relations (CAIR). The owner of the company suing is a Palestinian American.
That case seeks to prove the unconstitutionality of Texas’ anti-boycott law, which also requires a commitment not to boycott Israel in exchange for qualification for government contracts.
Texas passed its anti-BDS law in 2017, but amended it two years later in response to other litigation. It now includes minimum provisions for business size and contract amounts.
A U.S. district court judge entered a preliminary injunction in January preventing Houston from including the anti-BDS clause in the contract and Texas from forcing its inclusion. The 5th Circuit is expected to rule on the state’s appeal in the next few weeks.
Sabag says he’s confident the 5th Circuit’s ruling will hold up as precedent.
“I think that the reasoning of the court was very structured and clear. And we do think that there are strong reasons to suspect that the 5th Circuit will follow the 8th Circuit’s rationale,” he said.
An 11th Circuit case brought by CAIR, Abby Martin v. Regents of the University System of Georgia, involves journalist Abby Martin, who refused to sign an anti-BDS pledge as part of her contract to speak at Georgia Southern University.
A district court held that Georgia’s law requiring the oaths was unconstitutional, but dismissed claims against specific GSU officials on qualified immunity grounds. Georgia, like Texas, subsequently revised its law to tailor it more narrowly. Martin, though, appealed the decision related to qualified immunity.
But Sabag says that despite the ACLU’s massive efforts, they have nothing substantive to show in the way of defeating anti-BDS laws. One BDS victory, in the case of Texas speech pathologist Bahia Amawi, was short-lived, with an appeals court ruling that Amawi was not entitled to a large attorneys’ fees award, and stripped her of “prevailing party status,” which is given when a party to a case prevails on a significant issue in the litigation that achieves some of the benefit sought in bringing the case.
The appeals court decision determined Texas was already on its way to altering its anti-BDS law, regardless of Amawi’s particular case.
Sabag said the various injunctions and preliminary victories claimed by the ACLU in lower courts all ring hollow, since no final ruling on an anti-BDS law case has found such a law unconstitutional.
“I think this is the point where the cost-benefit analysis for the ACLU begins to shift, because they’ve now brought enough of these cases unsuccessfully. The ACLU does not have the ability to claim that any anti-BDS law has been found unconstitutional in any circuit simply because they obtained injunctions. So they’ve been telling lies,” said Sabag.
“The second thing is that they’re not recuperating legal fees just because they’re obtaining these injunctions. The ACLU and their partners like CAIR and others are many, many millions of dollars into testing these laws. And at this point, they have absolutely nothing to show for it,” he added, citing the added difficulty in finding plaintiffs who can meet the threshold to challenge the laws.
But Hauss told JNS his side is not contemplating giving in.
“I think this is a fundamental First Amendment right, so we are willing to keep investing resources in bringing these lawsuits as we identify people whose rights are being violated,” said Hauss. “We’ve built out our playbook and our arguments. Obviously I’m biased, but I think they’re convincing arguments, and so we can keep presenting those to courts and see how the states respond to them.”
Hauss said that even when the cases are lost on appeal, there is some measure of success in cajoling the states to narrow the laws on the books.
“I obviously don’t consider that a complete success. It’s a success for our clients who are no longer forced to sign the anti-boycott certification,” said Hauss. “I would prefer if the law were wiped from the books. But narrowing the number of people whose constitutional rights are violated, removing sole proprietors and small businesses from the scope of those statutes (as Texas did), I think is a partial success.”
But the chair of Sabag’s IAC for Action organization, Shawn Evenhaim, said the Supreme Court’s decision on Tuesday should give the green light to the remaining states who haven’t yet passed anti-BDS legislation.
“This ruling will allow even more states to do what’s right and prevent publicly-funded commercial interests from discriminating against the Jewish state,” said Evenhaim.
By Mike Wagenheim/JNS.org and combined sources