Federal Appeals Court Sends Arkansas Anti-BDS Law to Lower Court

A United States federal appeals court sent Arkansas’ anti-Boycott, Divestment and Sanctions (BDS) law back to a lower court on February 12.

The case in question stems from 2018, when one of the advertisers for The Arkansas Times, the University of Arkansas-Pulaski Technical College ceased ties with the Times after the paper refused to sign a pledge to not boycott Israel as part of the state law. The Times, which does not currently endorse a boycott of Israel, argued in court that the law violates the First Amendment.

Israel Hayom reported that in a 2-1 decision, the Eight Circuit Court of Appeals agreed with the Times, concluding that the law “prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime.’ Such a restriction violates the First Amendment.”

Jewish groups criticized the decision.

“The court chose to read the statute as prohibiting the state from contracting with people who are participating in a boycott of Israel even if that participation was wholly unrelated to their state contract,” the American Jewish Committee (AJC) said in a statement. “AJC does not read the Arkansas statute, or BDS statutes in other states, as reaching such unrelated conduct. Rather, the statutes constitutionally reach only boycott participation that does, or is likely to, adversely affect the state’s interest in the contract in question.”

The AJC argued that a drug manufacturer couldn’t refuse to sell medicine to Israel under the law, but allows the manufacturer’s executives to support Israel boycotts on their own time. “Arkansas can easily remedy the flaws in today’s decision both legislatively and administratively by limiting the statute and required contractor compliance certificate accordingly. AJC has already put into motion efforts to facilitate such changes.”

StandWithUs CEO and co-founder Roz Rothstein similarly said in a statement, “StandWithUs is confident that the desire of the state of Arkansas — to refuse to use taxpayer dollars to enter into contracts with companies that discriminate against Israel — will ultimately prevail despite the recent appellate court decision.”

On the other hand, Jack Saltzberg, president and founder of The Israel Group, doesn’t think the court’s ruling is particularly significant. “These anti-BDS laws and resolutions don’t work and, in fact, can be harmful by giving the pro-Israel community a false sense of security. While people unwisely think that a city or state law will help, hundreds of thousands of students are being taught and believe the lies and propaganda of the BDS movement.”

George Mason University Law Professor Eugene Kontorovich argued in a Twitter thread that the ruling was actually a victory against the BDS movement.

“Two judges (incorrectly) read ‘other actions’ as including pure speech, ie verbal support, and struck down those two words,” Kontorovich wrote. “But state anti-BDS laws have always been about refusals to deal, not pro-BDS speech, so the decision upheld much more than it rejected.

“Thus 8th Circuit ruling leaves intact not just the principal part of Arkansas’s anti-BDS law, but also provides a strong precedent for the constitutionality of such laws across the country, which quite clearly target pure business conduct, not merely ‘supporting’ boycotts.”

But two judges (incorrectly) read "other actions" as including pure speech, ie verbal support, and struck down those two words. But state anti-BDS laws have always been about refusals to deal, not pro-BDS speech, so the decision upheld much more than it rejected (3/6)

— Eugene Kontorovich (@EVKontorovich) February 13, 2021

Thus 8th Circuit ruling leaves intact not just the principal part of Arkansas's anti-BDS law, but also provides a strong precedent for the constitutionality of such laws across the country, which quite clearly target pure business conduct, not merely "supporting" boycotts. (4/6)

— Eugene Kontorovich (@EVKontorovich) February 13, 2021

Holly Dickson, the executive director of the American Civil Liberties Union (ACLU) of Arkansas, which represented the Times in the lawsuit, said in a statement, “Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test.”

A spokesperson for Arkansas Attorney General Leslie Rutledge said in a statement that she is “disappointed” in the decision and is currently exploring options on the matter.

This article was updated on February 19.