The Arkansas State Capitol. Photo: Wikipedia commons.
An Arkansas law prohibiting the state from contracting with entities that boycott Israel does not violate the First Amendment, but rather protects taxpayers from funding “discriminatory conduct,” the office of the state’s attorney general argued in a brief filed Friday.
The defense followed an appeal issued by the American Civil Liberties Union (ACLU) on behalf of the Arkansas Times newspaper, which claimed it “lost numerous government advertising contracts” after it refused to certify that it is not engaged in a boycott of Israel, and would not engage in such a boycott for the duration of the contract.
The stipulation is required by Act 710, a law passed in Arkansas in 2017 that is similar to provisions enacted by 26 other states, all of which seek to counter the Palestinian-led boycott, divestment, and sanctions (BDS) campaign against Israel. Leaders of the campaign say that it seeks to redefine Israel “as a pariah state” until it recognizes Palestinian rights and rectifies the injustice of its creation, while opponents accuse it of denying the Jewish people’s right to national self-determination and trafficking in historical revisionism and antisemitism.
A lawsuit filed by the ACLU against the constitutionality of Act 710 in district court in 2018 was dismissed this January, with Judge Brian Miller maintaining that boycotts are not protected speech.
In its appeal, the ACLU described boycotts as “a fundamental part of American political discourse,” and said Act 710 was rooted in “the desire to suppress disfavored viewpoints and compel support for the government’s message.”
“If the district court’s decision is upheld, government officials of all political stripes will have a free hand to suppress disfavored boycotts based on nothing more than ideological hostility,” it warned.
The Arkansas Times itself has said that it has not participated in or editorialized on boycotts of Israel, but objected to having potential editorial content limited by the government.
Amicus briefs in support of the appeal have been filed by groups including the Foundation for Individual Rights in Education, Council on American Islamic Relations, J Street, T’ruah, National Lawyers Guild, Jewish Voice for Peace and the US Campaign for the Academic and Cultural Boycott of Israel, among others.
In its response, the attorney general’s office said the law upheld a “limited goal” and “does not regulate anyone’s speech or expressive conduct. Contractors remain free to criticize Israel, denounce Arkansas’s law, and even advocate boycotting.”
“Instead, the challenged provision only affects a contractor’s decision not to purchase goods from certain entities” — namely, those that do business in Israel.
The mere act of boycotting goods from Israel-affiliated companies is “not expressive of anything until the purchaser explains that he or she is engaged in a boycott and why,” as the absence of such goods is not itself indicative of a boycott, the brief stated. “[If] conduct needs to be explained to take on expressive meaning, it was never expressive to begin with and it is not protected by the First Amendment.”
The defense also cited previous congressional action on “preventing discrimination against Israel,” as well as measures taken by foreign governments such as Germany, whose parliament declared in a non-binding motion last month that the BDS campaign’s methods are antisemitic and reminiscent of Nazi-era boycotts against Jews.
Laws barring state bodies from contracting with entities that boycott Israel have previously been blocked in Texas, Kansas and Arizona, following petitions supported by the ACLU. The laws were subsequently amended by each of the states to not apply to individual contractors and contracts of $100,000 or less, though critics say they remain fundamentally unconstitutional.