On Tuesday, the United States Supreme Court declined to review a law that penalizes boycotting Israel in the state of Arkansas, leaving in place a lower court’s decision to uphold the measure. The American Civil Liberties Union (ACLU) of Arkansas expressed their disappointment, stressing that the move does not mean that the top court is asserting the constitutionality of anti-boycott laws.
The case began 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.
Brian Hauss, an ACLU staff lawyer, said the Supreme Court’s decision not to take the case does not express its views about the merits of the litigation. He added that sometimes the Supreme Court waits until different appeals courts are split on certain subjects before issuing a binding precedent.
Hauss also criticized 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. He argued that there is no evidence that boycotts of Israel have any particularly disastrous economic effect on Arkansas’s tax revenues or trade relations.
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.
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. She added that it is only by organizing that people can win and it is critical to keep boycotting, even as they push back against unconstitutional laws in the courts and in legislatures.
Advocates have raised concerns that anti-BDS laws 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 said some legislators feel emboldened to apply the anti-boycott push to protest movements that they oppose.
In the Israel-Palestine context, activists say anti-boycott laws fit a pattern of punishing and “cancelling” Palestinian rights advocates in the US. James Cavallaro, a human rights advocate, 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.
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”. He added that 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. Republican Senator Tom Cotton called it a “great win for Arkansas and America in the fight against the anti-Semitic BDS movement”. The BDS movement rejects accusations of anti-Semitism and says it pushes for equality against “racist” Israeli policies.
In conclusion, Tuesday’s decision by the Supreme Court does not express its views about the merits of the litigation or legitimise anti-BDS laws. However, it may embolden pro-Israel voices who seek to silence dissent and chill criticism of Israel in American society. Despite this setback, activists remain determined to collectively raise their voices and use their economic power for justice.