Federal Appeals Court Upholds Arkansas Anti-BDS Law

The Eighth Circuit Court of Appeals upheld Arkansas’s anti-Boycott, Divestment and Sanctions (BDS) in a June 22 ruling.

The case originated 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, has argued that the law violates the First Amendment.

In the June 22 ruling, the court ruled 9-1 that the law simply bars “purely commercial, nonexpressive conduct.” “It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself,” the court stated. “It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

Link to the ruling https://t.co/NhfO1BVoX5

— Eugene Kontorovich (@EVKontorovich) June 22, 2022

Jewish groups praised the court’s decision.

“This was the first appellate test of laws that combat the Boycott, Divest and Sanctions movement, whose primary aim is to eliminate the State of Israel,” American Jewish Committee Chief Legal Officer Marc Stern said in a statement. “The Eighth Circuit unequivocally affirmed that such laws do not infringe on the First Amendment. As the court noted, Arkansas has broad power to regulate economic activity, and taking a position on a boycott does not inhibit free speech.”

StandWithUs also issued a statement lauding the decision, stating that it “establishes excellent precedence, hailing from the highest and most authoritative decision body to yet address the constitutionality of anti-BDS laws, which 34 states have passed nationwide.”

Israeli-American Coalition for Action Executive Director Joseph Sabag, who drafted the Arkansas anti-BDS law, said in a statement, “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. 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.”