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Arkansas ‘Anti-BDS’ Statute To Remain, SCOTUS Refuses To Hear Challenge

Arkansas ‘Anti-BDS’ Statute To Remain, SCOTUS Refuses To Hear Challenge

Refused to hear an appeal from an Eighth Circuit ruling upholding the law, the only circuit-level court to have addressed the merits of the anti-Israel-boycott statutes.

This morning, the United States Supreme Court denied the petitioner’s application for writ of certiorari in Arkansas Times v. Waldrip,  leaving intact an Eighth Circuit en banc ruling upholding Arkansas’ “anti-BDS” (boycott, divest, and sanction) statute. The decision marks a major win in the battle against challenges to these laws prohibiting taxpayer-funded discrimination against the Jewish state.

We covered the case and its procedural history here:

The Arkansas law, passed in 2017, requires companies that enter into public contracts to certify that they do not and will not boycott Israel. From the Eighth Circuit opinion:

Arkansas Act 710 prohibits state entities from contracting with private companies unless the contract includes a certification that the company “is not currently engaged in and agrees for the duration of the contract not to engage in, a boycott of Israel.” Ark. Code Ann. § 25-1-503(a)(1). The statute defines “boycott of Israel” as “engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner.” Ark. Code Ann. § 25-1-502(1)(A)(i).

As we wrote here, The Arkansas Times, represented by the American Civil Liberties Union (ACLU), originally challenged the statute in district court, arguing that it violates the First Amendment. The court dismissed the suit, holding that the anti-Israel boycotts are not protected by the First Amendment because they are neither speech nor expressive conduct. That decision was then reversed by a divided three-judge panel of the Eighth Circuit Court of Appeals. The Eighth Circuit subsequently granted a rehearing en banc, i.e., with all of its active judges presiding.

The lawsuit was the latest in the ACLU’s years-long  battle against anti-BDS laws—a battle roundly criticized for its hypocrisy. Historically, the ACLU championed antiboycott legislation that protected gays and lesbians, law professor Eugene Kontorovich observed in a 2019 Wall Street Journal op-ed. But when the Jewish state appeared in the crosshairs of the modern-day BDS movement, the civil liberties group gained a strange new respect for boycotts: “Now,” he wrote, “it is prepared to risk legal protections for sexual minorities for the sake of creating a constitutional right to boycott Jews.”

In the Arkansas Times case, the ACLU claimed that the Arkansas statute placed an unconstitutional condition on the award of government contracts and that it compelled speech.

The Eighth Circuit disagreed. It upheld the Arkansas law because it prohibits only “purely commercial, non-expressive conduct.”:

It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. 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.

Nor does the statute unconstitutionally compel speech, the court held.  (Note that Arkansas Times did not base its petition for certiorari on the compelled-speech theory.) “The compelled speech doctrine,” it explained, “prohibits the government from making someone disseminate a political or ideological message.”

But the Arkansas statute’s certification requirement does not cross that line:

Although it requires contractors to agree to a contract provision they would otherwise not include, it does not require them to publicly endorse or disseminate a message. Instead, the certification targets the noncommunicative aspect of the contractors’ conduct—unexpressive commercial choices. The “speech” aspect—signing the certification—is incidental to the regulation of conduct.

Seen this way, the court concluded, the certification requirement is a “factual disclosure” “aimed at verifying compliance with unexpressive conduct-based regulations.” That is “not the kind of compelled speech prohibited by the First Amendment.”

The ACLU took the case to the United States Supreme Court in October of last year. In its petition for a writ of certiorari, it argued that the appeals court ignored First Amendment Supreme Court precedent set in NAACP v. Claiborne Hardware Co. protecting “political” boycotts.

We wrote about the BDS movement’s misplaced reliance on Claiborne Hardware to promote anti-Israel boycotts in our review of a research paper here: That case, the authors observed, carefully avoided ruling on the constitutionality of the boycotts themselves. The drafters of contemporary anti-BDS legislation seem to have taken note: the state statutes avoid constitutional pitfalls by targeting “only… the boycott … leaving the ancillary expression untouched.’”

In other words, today’s anti-BDS laws regulate conduct, not speech.

That is the position the respondents take in their opposition to the petition for writ of certiorari:

Economic conduct isn’t expression, and explaining that it had a political motivation doesn’t make it expression. That’s why States can, and often do, ban refusals to do business solely because of an individual’s race, national origin, religious affiliation, or other status—even if they’re accompanied by speech. And this Court has affirmed those bans time and time again.

The Arkansas law at issue here squarely fits that mold. Arkansas does not want to partner with companies that discriminate based on national origin, so it requires government contractors to certify that they don’t refuse to deal with Israelis or people who do business with them. That requirement regulates only that economic conduct; it doesn’t prohibit contractors from saying anything.

The Court’s decision to let the Eighth Circuit en banc ruling stand is an important victory in the fight against government-funded discrimination against Israel. More than half of the states in the country have anti-BDS laws that, like the Arkansas statute, require government contractors to certify that they are not boycotting the Jewish state.

The Eighth Circuit is the only circuit-level court to have addressed the merits of the anti-Israel-boycott statutes. And although its decision is not binding in other circuits, it is nonetheless likely to influence courts seeking guidance in future challenges to other state’s statutes. One of those is the Fifth Circuit, where A&R Engineering and Testing, Inc. v. Paxton, is pending, scheduled for oral argument next mo


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Some good things coming out of Arkansas and getting noticed, lately. Woohoo!

I don’t understand what the judges who ruled against such laws, e.g. in Texas, were thinking. If I were a government contractor in the same district in Texas, as soon as that decision came down I would notify the AG that I am revoking my guarantee that I am not boycotting black people, and that I refuse to make such a guarantee any more, wait for him to cancel my contract, and then sue.

Once again affirming the basic principle that you have the right to advocate anything you like; but you don’t have the right to do anything you like, even if you are vigorously advocating it. You can denounce private property all you like, and advocate robbing banks, but if you actually do so, or even merely conspire to do so, the first amendment will not help you.

This is a start but it needs to grow and become the law of the land. Companies like BlackRock that advocate ESG investments and others who aim at gun manufacturers, should be treated just like a public barber shop that cannot deny service to anyone who enters their shop. As much sympathy as I feel for the Colorado baker who has had to fight the gay community forever, he should not have won the first time. He should have agreed to make the cake but make it so poorly that they would never ask him again. Religion should never be a reason to not serve the public nor any other “Ism” or personal belief. If you open your doors to the public, then you must serve that public as long as the requests are legal.

    CommoChief in reply to inspectorudy. | February 21, 2023 at 1:20 pm

    Marie Antoinette aside no one considers cake essential./s

    Your have an incredibly expansive interpretation of what constitutes illegal discrimination. So much so you embrace a totalitarian viewpoint that expressly forbids freedom of conscience. The baker offered to make a damn cake but without the artistry they desired. You would require him to subordinate his liberty when it clashes with another liberty claim.

      inspectorudy in reply to CommoChief. | February 21, 2023 at 4:07 pm

      Once again, the baker could have put what he interpreted to be what they wanted and they would have been appalled. I said no such thing about freedom of conscience, but you cannot discriminate because of your conscience. How would it be fair to have a bar with a “No Jews” allowed sign? I am saying anytime you use the public sphere as your market, you have to accept that market in its entirety. There are thousands of barbers all over the country that do not want to cut white or black hair depending on their skills. But if you walk into one of their shops you will be seated and told that they are not very good at your type of hair. If you demand a haircut, you will probably get one that you did not want. If religion can be a discriminating factor, what about Muslims refusing to serve women or any sect that has its own rules not serving a certain part of our society? If you want to call this “Freedom of conscience” then you are condoning discrimination. You are creating a loophole in the law for people to discriminate.

        CommoChief in reply to inspectorudy. | February 22, 2023 at 9:34 am

        Your expansive view of public accommodation is incorrect. Please do some real research on the topic. Your rights end where another’s rights begin. Granted there has been a shift towards compelling actions and erosion of freedom of conscience but not close to what you are incorrectly declaring as factual.

        Discrimination is 100% legal when conducted by private clubs. Your argument re discrimination isn’t the mic drop seem to believe. Do some research outside the leftist bubble.

          Milhouse in reply to CommoChief. | February 22, 2023 at 3:36 pm

          Well, private clubs aren’t relevant, since they’re not public accommodations. And to stay that way they have to restrict access by non-members in some way, e.g. by requiring them to be signed in by a member.

          But actual public accommodations are also allowed to discriminate, just not in certain specific ways. It is not the case, as inspectorudy claims, that they must serve all comers. The relevant laws (federal, state, and local) specify the ways in which they may not discriminate, and they are free to discriminate in any other way at all. National origin is one of the ways in which they may not discriminate, so it is illegal for them to boycott Israelis. (Though they may still boycott the Israeli government.)

          However most government contractors to whom these anti-BDS laws apply are not public accommodations, so it’s legal for them to boycott Israelis; but it’s equally legal for the government to refuse to contract with them if they do so. Since boycotting is not a constitutional right, the government may use its contracting power to discriminate against those who act against public policy in this manner. It can’t do so against those who merely advocate a boycott, because that is a constitutional right.

    Sorry, but that’s not freedom.

      inspectorudy in reply to GWB. | February 21, 2023 at 4:11 pm

      It is freedom because he chose to enter the public domain and that was his choice. Totally free to not buy a bakery but once he opened the doors, he is obligated to serve ALL of the public. If he had any sense, he would have deliberately sabotaged the item and they would never darken his door again.

        Milhouse in reply to inspectorudy. | February 21, 2023 at 4:37 pm

        That is the exact opposite of freedom. He needs nobody’s permission to start a bakery; therefore nobody can put conditions on “allowing” him to do so. No business in the land is required to serve all comers.

    Milhouse in reply to inspectorudy. | February 21, 2023 at 4:34 pm

    […] should be treated just like a public barber shop that cannot deny service to anyone who enters their shop.

    That is not true. Public barber shops are not subject to such a requirement; neither is any other business. Therefore nobody can be “treated like” that.

It amuses me, watching the regulars here twist themselves in knots arguing this isn’t a gross violation of freedom of association because it’s their ox begin gored.

    To paraphrase Montesquieu; virtue itself hath need of limits.

    You still have the freedom to advocate the targeting of one state solely in the basis of race. Just don’t expect the State you want to do business in to support you financially through contracts for what ever it is you’re trying to sell 😂😂

    Milhouse in reply to daniel_ream. | February 21, 2023 at 4:42 pm

    It isn’t a violation of freedom of association. On the contrary, you are denying the state its freedom of association. The state doesn’t want to do business with people who boycott its friends, or with people who boycott people of a particular race, religion, etc. It has the right to boycott such people. And in order to avoid doing business with such people, it has the right to demand of prospective business partners that they certify to it that they don’t do such things.

    And in the case of public accommodations, employers, and landlords, it’s already against the law for them to boycott Israelis, just as it is to boycott people of any other national origin. That law is not being challenged. So there can certainly be no objection to requiring them to certify their compliance with that law.

    rebelgirl in reply to daniel_ream. | February 22, 2023 at 9:21 am

    You can still associate with citizens of or visit any country you like..(assuming the state department hasn’t banned travel to that destination)…and, you can advocate for a change in the law and/or policy. Knock it out.

      Milhouse in reply to rebelgirl. | February 22, 2023 at 3:50 pm

      I don’t think the State Dept can ban travel to any destination. It can discourage such travel, warn people that it’s a bad idea, make difficulties for those who go there, but I think that’s all.

        Virginia42 in reply to Milhouse. | February 23, 2023 at 10:58 am

        It probably can under certain circumstances. When growing up, I had a list of countries in my passport I was prohibited from visiting–East Germany, North Vietnam, etc becuase of the work my Dad did for the USAF. Admittely this was probably a specialized thing, but it was definitely in there.

          Milhouse in reply to Virginia42. | February 23, 2023 at 2:55 pm

          It can restrict the use of a US passport to go to those countries, but I don’t think it can ban travel there with some other passport or none (assuming the country allows you in without one). For instance, it’s currently illegal to use a US passport to travel to North Korea, without a special endorsement from the State Dept. But those who have a second passport can go there freely and violate no US law.

an important victory in the fight against government-funded discrimination against Israel
Interesting. Is it only Israel that should not face that discrimination? Why is this legislation only pertinent to Israel, and not, say… Russia or China?

Also, I’ve never quite agreed on the “economics isn’t expression” bit.

    WestRock in reply to GWB. | February 21, 2023 at 1:09 pm

    Have we ever fought a war with Israel, cold or otherwise? Have we ever referred to Israel as an adversary?

    Why not add Iran to your list?

      Maybe we should ask the men of the USS Liberty if we ever fought against Israel? Or the people that have been convicted of actively spying for Israel here in the US?

      (And my comment is not anti-Israel. It is simply to note that Israel is not pure as the driven snow and should be treated like any other country.)

        Milhouse in reply to gitarcarver. | February 21, 2023 at 5:00 pm

        The attack on the Liberty was a case of mistaken identity, no different from the many cases of friendly fire within our own forces. When a US plane bombed Canadian soldiers in Afghanistan, was that an act of war by the US against Canada?!

        Spying is something all countries do on all countries. The US spies on Israel all the time; why shouldn’t Israel spy on the US? It’s not a hostile act, it’s just normal behavior. Standard policy is that when you catch an allied spy you send them home quietly; you don’t arrest them and imprison them for decades. Or would you be OK with Israel arresting a few US spies?

          The attack on the USS Liberty was not a case of mistaken identity. It was not a case of friendly fire.

          The Liberty was in international waters, and had been identified to the Israelis through diplomatic and military communications. Even after the first attack, the Liberty was flying a large US flag designating it as a US ship.

          No one is saying that accidents do not happen in war.

          The attack on the Liberty was not an accident.

          As for “spying,” there is a difference between keeping an eye on a nation and stealing its secrets. Stealing military secrets or supplying those secrets to another nation is part of a cold war campaign.

          Milhouse in reply to Milhouse. | February 22, 2023 at 8:42 am

          Gitarcarver, you are lying. The things you wrote are simply not true. The recording of the pilots’ conversation with their control was published about 20 years ago, and it completely confirms that this was a case of mistaken identity. There was no US flag visible, the ship was not anywhere near where it was supposed to be, and neither the pilots nor their control had any idea it was American. As soon as the pilots reported a US flag, the attack stopped immediately. These are facts, not opinion, and you are not entitled to your own. Those who continue to repeat the lies about it can only be acting out of antisemitism.

          As for spying, don’t be stupid. Do you think the US doesn’t do all it can to obtain other countries’ secrets, military or otherwise?! And Israel has never supplied US secrets to a hostile nation; the US has not been that careful with Israeli secrets (or with its own). Further, the US had an obligation to tell Israel about Iraq’s poison gas program, and deliberately chose not to, supposedly because “Jews have a thing about gas”. That omission was a hostile act.

          No Milhouse, you have a problem with the facts.

          The USS Liberty was in international waters. The Israelis said they tracked the Liberty doing 28 knots, a speed which the ship was not capable of, After the first air attack, the Liberty took down its US flag and raised the largest flag it had. It is clear from the record that the flag was flying all the time.

          The US had communicated where the ship was and that it was in international waters to the Israelis.

          This was an attack on a US ship in international waters.

          Somehow your liberal view of the world means that you don’t have to deal with facts and can resort to some sort of ridiculous name calling without any basis.

          It says a great deal that you think that facts are somehow “anti-semetic.”

          Apparently you adopt the “tribalism” view of the world that any criticism of someone or a country must be based on something other than their actions.

          I pity you.

          Milhouse in reply to Milhouse. | February 22, 2023 at 4:18 pm

          And you keep lying. The fact that it was in international waters is completely irrelevant, so I don’t understand why you keep repeating it. It was not where it was supposed to be, and neither the pilots nor their controllers knew it was a US ship. That is an established fact, and denying it only makes you a liar, and invites speculation as to your motive for lying. Antisemitism is the most obvious such motive, so it’s a reasonable guess, but only that.

        Virginia42 in reply to gitarcarver. | February 23, 2023 at 11:01 am

        The Liberty was a screw up. My Dad worked ELINT during that period–we put the Liberty at unecessary risk by having them so close to the coast, just outside the limit. That was stupid. Remember we effed up with the Pueblo, as well. Not everything can be blamed on the Israelis or some other actor. And yes, the info is out there. It was a screw up. I have a number of friends who served in WW2 who were strafed by the Air Corps when it was “obvious” they were Americans. Not to the pilots it wasn’t.

          Milhouse in reply to Virginia42. | February 23, 2023 at 3:00 pm

          Actually as I understand it when the war broke out the Liberty was ordered to keep at least 100 nautical miles away from the war zone, but there was a screwup in communications and they never received the order. So not even the US knew it was there.

      So, your ban list would be flexible, based entirely on who is our friend and who is our foe at any given time?
      I’m OK with that. But that is not what this law is doing.

        Milhouse in reply to GWB. | February 21, 2023 at 4:51 pm

        Yes it is exactly what this law is doing. It’s expressing a public policy. The legislature can change that at any time.

    Milhouse in reply to GWB. | February 21, 2023 at 4:50 pm

    1. In the case of public accommodations, employers, and landlords, boycotting Russians or Chinese is illegal.

    2. In the case of people who are not subject to the previous law, governments still have the right not to want to do business with them if they do something that is contrary to public policy. Congress as well as many states have declared that the anti-Israel boycott is contrary to public policy. That doesn’t make it illegal, but it does mean it’s legit for the USA or for those states to not want to do business with those who engage in it.

    Expressive conduct requires that, in a given context, the conduct’s meaning is clear without explanation. Baking a blue cake with pink icing is not itself expressive conduct. But doing so in the knowledge that the client intends it as a celebration of his/her transition is expressive, because it doesn’t require any further explanation.

      2. The problem is that you seem to believe that freedom of expression and association can be punished even when one is not breaking any law. Surely even you cannot think that supporting BDS is not a protected speech and activity. What you and others are advocating is that the government can penalize people and businesses for speech and activities that the government doesn’t like.

      The government is supposed to viewpoint neutral. Here, the actions of the government are clearly not neutral.

      There is no way around that. The government is punishing people and companies for speech that is clearly allowed, legal and political in nature.

        Milhouse in reply to gitarcarver. | February 22, 2023 at 8:48 am

        Once again, you lie.

        First of all, the government is not supposed to be viewpoint neutral. The government is entitled to its own viewpoint, and to disagree with opposite viewpoints. It is only when dealing with other people’s speech in a public forum that it must be viewpoint-neutral.

        Supporting BDS is speech, and is protected. The government can’t punish someone for it by refusing to do business with them. But practicing BDS is not speech, it is not protected, and in many contexts it is actually illegal. The government is certainly entitled to make it a condition of doing business with it that the person certify that they are not engaging in BDS, or in any other activity that the government disapproves of, and that is not constitutionally protected.

          Once again, you like to name call. It is a habit with you.

          Yes, the government can have its own viewpoint. I don’t believe that anyone has disputed that.

          The government’s viewpoint is not the issue. The issue is when the government has policies that have the effect of censoring legal speech and actions.

          Surely you aren’t saying that people and or companies are not allowed to speak in support of BDS, or protest in support of BDS.

          Therefore the conduct of BDS is protected.

          Where you go off the rails is when you believe it is legal and acceptable for the government to punish someone for having views with which the government disagrees.

          Courts have long held that any law that impacts speech is subject to strict scrutiny.

          The government cannot punish people for their legal speech and actions. Yet that is what these types of laws do.

          In essence, you are saying that the government can say “we like the legal speech and actions of this group, but we don’t like the legal actions and speech of this group therefore, we won’t do business with them.”

          How you or anyone cannot see how that is a chilling effect on the legal rights of people and companies is beyond any rational thought.

          And for the record, I support Israel, and am anti= BDS. However, unlike you, I know and recognize that the answer to ideas that may be repugnant is not government restriction / punishment of speech and legal actions, but more speech and actions.

          Be careful because you are supporting a very slippery slope here. If the government can say “we won’t do business with people companies that believe this…..” when will your company or your person be next?

          BTW – your assertion that BDS is not within the “public forum” is, on its face ridiculous and incorrect.

          Milhouse in reply to Milhouse. | February 22, 2023 at 4:36 pm

          And you keep on lying. The more you do this, the more likely the supposition of an antisemitic motive becomes.

          You disputed that the government is entitled to its own viewpoint. You claimed that the government must be viewpoint-neutral. And that is false.

          I have written at least four times on this post alone that people (including companies) are entitled to speak in support of BDS, or protest in support of BDS, and that the government may not punish such speech by refusing to do business with them. In its regulation of other people’s speech the government must indeed be viewpoint-neutral.

          However the conduct of BDS is very clearly not protected.

          That you jump directly from the topic of speech advocating BDS, which nobody disputes is protected, to the topic of engaging in BDS, without any explanation, as if it obviously follows, shows that your entire participation in this discussion has been disingenuous and your harping on the freedom of speech is a mere red herring.

          It is not legal or acceptable for the government to punish someone for having views with which the government disagrees. It is perfectly legal and acceptable for for the government to “punish” someone, by denying them a benefit they would otherwise receive, for unprotected actions of which the government disapproves. Such as BDS.

          The legislature may even make laws banning BDS altogether, as it has done for public accommodations, employers, and landlords. And the government may obviously punish those who violate those laws. It can’t ban advocating BDS, any more than it can ban advocating bank robbery, but it can ban acting on that advocacy.

        CommoChief in reply to gitarcarver. | February 22, 2023 at 9:51 am

        The govt is supposed to be content neutral regarding the ability of individuals and groups to hold viewpoints and is supposed to grant a permit for a rally or a parade in support of those viewpoints. Generally speaking the govt couldn’t grant a permit to a group advocating for X but refuse a permit for a group opposing X. The govt isn’t supposed to engage in censorship directly or indirectly via asking someone else to do it for them.

        This particular law doesn’t violate any of those restrictions on govt action. This law simply asserts the govt own right of association and here the govt refuses to associate in potential business relationships with individuals and groups who oppose the existence of Israel via BDS.

        You seem to be arguing that the govt is required to create, maintain and willingly participate in business relationships with all comers regardless of the viewpoint that entity expresses. This position would require the govt to grant contracts to the KKK, Antifa or other weirdo entities. That’s Cray Cray.

          Milhouse in reply to CommoChief. | February 22, 2023 at 4:42 pm

          Actually the government is required to create, maintain and willingly participate in business relationships with all comers regardless of the viewpoint that entity expresses. It cannot exclude a company that openly supports the KKK or Antifa from a government contracting program for which it would otherwise be eligible.

          But it may of course exclude the KKK or Antifa themselves, not because of the views they express but because of their actions in support of those views. Not only when those actions are criminal, as they usually are in the case of the KKK and Antifa, but even when the actions are legal but not constitutionally protected, e.g. a private club that excludes black people from membership.

If the Russian Federation has the Wagner Group and NATO has the Mozart Group, Israel can have the Klezmer Group. Israel like the Russian Wagner Group will have a wonderful time with the BDS NAZIs. Body Bags for BDS NAZIs anyone? Israel needs to put real fear into the BDS NAZI scum. Have the BDS Professors and Students constantly looking behind them and scared to death. Have them know what it is like to live in Sderot, Israel under Hams attacks.