Top US court refuses to review anti-BDS law. Here’s what it means

Washington, DC – The United States Supreme Court has opted not to review a law that penalises boycotting Israel in the state of Arkansas, leaving in place a lower court’s decision to uphold the measure.

Free speech advocates lamented the decision on Tuesday while stressing that the move does not mean that the top court is asserting the constitutionality of antiboycott laws.

In recent years, dozens of US states have approved measures to combat the Palestinian-led Boycott, Divestment and Sanctions (BDS) movement, which aims to peacefully pressure Israel to stop its abuses against Palestinians.

“The right to free speech includes the right to participate in political boycotts,” Holly Dickson, executive director of the American Civil Liberties Union (ACLU) of Arkansas, said in a statement on Tuesday.

“America was founded on political boycotts, and boycotts are a powerful way to speak and create change.”

The First Amendment of the US Constitution guarantees the right to free speech.

The Arkansas case

In a phone interview with Al Jazeera, ACLU staff lawyer ​​Brian Hauss said the top court’s move not to take the case does not express its views about the merits of the litigation.

He said sometimes the Supreme Court waits until different appeals courts are split on certain subjects before issuing a binding precedent.

“I wouldn’t over-read the Supreme Court’s decision here to be any sort of expression on whether the First Amendment protects the right to boycott or whether these anti-BDS laws are constitutional or not,” Hauss said.

The Arkansas case started in 2018 when The Arkansas Times, a Little Rock-based publication, joined with the ACLU to sue the state over its anti-BDS law. The magazine alleged that a public university in the state refused to enter into an advertising contract unless the publication signed a pledge not to boycott Israel.

The Arkansas law requires contractors that do not sign the pledge to reduce their fees by 20 percent.

A district court initially dismissed the lawsuit, but a three-judge appeals panel blocked the law in a split decision in 2021, ruling that it violates the First Amendment.

Last June, the full Eighth Circuit Court revived the anti-BDS statute, overturning the panel’s decision in favour of the magazine. In the weeks that followed, the ACLU asked the Supreme Court to review the case.

With the top court’s decision on Tuesday, that particular litigation has reached its limits.

Hauss slammed the appeals court’s argument that political boycotts fall under economic activity, not “expressive conduct”, saying it runs afoul of a 1982 Supreme Court precedent.

“There’s no evidence that boycotts of Israel have any particularly disastrous economic effect on Arkansas’s tax revenues or trade relations,” Hauss told Al Jazeera.

“Rather, it seems patently obvious that the state is targeting these boycotts because of their message.”

Congresswoman Rashida Tlaib, who is of Palestinian descent, also criticised the Supreme Court, which is dominated by conservative justices, for failing to take up the case, stressing that First Amendment rights are “critical” for US democracy.

“We are on a dangerous path when the Supreme Court refuses to hear a case where our fundamental rights to free speech are trampled,” Tlaib told Al Jazeera in an email.

“From the American civil rights movement to the fight against apartheid in South Africa, economic boycotts have a long history as an effective, nonviolent tool to speak out against oppression.”

Anti-BDS laws

Anti-BDS laws vary from state to state, but they largely follow a similar formula of “boycotting the boycotters”, with states withholding certain benefits from individuals and businesses that refuse to associate with Israel.

Such laws often apply not just to Israel but also to Palestinian and Arab territories under illegal Israeli occupation. For example, several US states rushed to activate their anti-BDS measures against Ben & Jerry’s last year after the ice cream maker said it would stop selling its products in the occupied West Bank.

On Tuesday, Meera Shah, staff lawyer at the advocacy group Palestine Legal, called the Supreme Court’s failure to take up the Arkansas case a “missed opportunity” to affirm the right to boycott.

“But we recognize that the courts — and especially this Court — cannot be counted on to protect our fundamental rights,” Shah told Al Jazeera in an email.

“It’s only by organizing that we win, which is why it’s critical to keep boycotting, even as we keep pushing back against these unconstitutional laws in the courts and in legislatures.

“This decision does nothing to prevent everyday people from continuing to collectively raise their voices, and use their economic power, for justice.”

The Arkansas Times publisher Alan Leveritt also decried the Supreme Court’s decision, calling the state’s antiboycott legislation an “abhorrent” violation of US constitutional rights.

“The Supreme Court can ignore our First Amendment rights but we will continue to vigorously exercise them,” Leveritt said in the magazine.

Punishing boycotts beyond Israel

Advocates have raised concerns that anti-BDS laws — often passed with bipartisan support in states dominated by Republicans and Democrats alike — are paving the way for greater violations of free speech.

For example, several states have introduced bills — modelled after anti-BDS measures — to penalise boycotts of fossil fuel firms and other industries.

Hauss, the ACLU staff lawyer, said some legislators feel emboldened to apply the anti-boycott push to protest movements that they oppose.

“All sorts of special interests … are going to be lobbying state legislatures for protective legislation to suppress consumer boycotts of their activities and essentially immunise them from political dissent,” he said.

In the Israel-Palestine context, activists say anti-boycott laws fit a pattern of punishing and “cancelling” Palestinian rights advocates in the US.

In January, a candidate for US assistant secretary of state for democracy, human rights, and labor withdrew her nomination after pushback from Republicans over her criticism of Israel.

James Cavallaro, a human rights advocate, also said earlier this month that the Biden administration pulled his nomination for commissioner on the Inter-American Commission on Human Rights over “denouncing apartheid” in Israel and Palestine.

In one of their first moves as a majority in the House of Representatives, Republicans kicked Muslim-American Congresswoman Ilhan Omar off the chamber’s foreign policy panel in early February for past statements against Israel.

Chilling effect

Amer Zahr, a Palestinian-American comedian and president of the advocacy group New Generation for Palestine, said Tuesday’s decision by the Supreme Court does not legitimise anti-BDS laws, but it may “embolden pro-Israel voices who seek to silence dissent“.

“While anti-BDS laws have not been found as constitutional, pro-Israel forces will assuredly frame it as such, chilling even more criticism of Israel in American society,” Zahr told Al Jazeera.

“Luckily, however, the tides are likely turning too fast. Americans are quickly awakening to Israel’s apartheid and inhumane treatment of Palestinians, and no clerical decision by the Supreme Court can stop that wave.”

Proponents of anti-BDS measures say they are necessary to counter what they say is a “discriminatory” push to “single out” Israel.

Israel’s supporters hailed the decision on Tuesday, with Republican Senator Tom Cotton calling it a “great win for Arkansas and America in the fight against the anti-Semitic BDS movement”.

A great win for Arkansas and America in the fight against the anti-Semitic BDS movement.

Outstanding news. https://t.co/yA9y4mLMMV

— Tom Cotton (@TomCottonAR) February 21, 2023

The BDS movement rejects accusations of anti-Semitism and says it pushes for equality against “racist” Israeli policies.

Hauss of the ACLU said Cotton’s statement demonstrates that anti-BDS laws are about political expression.

“Senator Cotton’s statement shows that the whole point of these anti-BDS laws is to suppress expression that the state opposes,” Hauss said.

“And whatever the state’s reasons for opposing that expression — however it phrases it — the fact of the matter is they’re opposed to the message that the boycott sends. And that is the single thing that the First Amendment is designed to prevent.”