Welcome to the Tuesday News Bulletin! Jewish Currents is constantly getting quotes and scooplets from our network of sources, and every Tuesday, we release small stories exclusive to our newsletter subscribers in emails like this one. In addition to original reporting, the Tuesday News Bulletin serves as a forum for aggregating stories Jewish Currents staffers are tracking, with plenty of links to other publications so you can keep up with everything happening on our beats.

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November 1, 2022

On October 20th, the American Civil Liberties Union (ACLU) asked the Supreme Court to review a lower court’s ruling upholding a 2017 Arkansas law that requires government contractors to sign a pledge stating they will not boycott Israel if they do not want to face a 20% reduction in contractor fees. The ACLU’s intervention on behalf of an Arkansas newspaper that refused to sign the anti-boycott pledge marks the first time the Supreme Court has been prompted to review a law aimed at suppressing boycotts of Israel.

The Arkansas statute is one of 28 similar laws that make government contracts conditional on pledges not to boycott Israel. Supported by Christian evangelicals and Jewish establishment groups and boosted by the conservative American Legislative Exchange Council, these laws aim to weaken the Boycott, Divestment, Sanctions (BDS) movement targeting Israel over its human rights abuses against Palestinians. “We know what these laws’ overall intent is and that’s because their backers have been very clear about this. It’s to try to suppress speech for Palestinian rights,” said Radhika Sainath, a senior staff attorney at Palestine Legal, a group that defends the free speech rights of Palestinian rights advocates. “There’s a growing movement in this country supporting Palestinian freedom, and pro-Israel advocacy groups are quite afraid of this.”

Anti-boycott laws’ impact goes beyond the Palestine advocacy world. In the past few years, states have passed or considered a wave of copycat laws modeled on anti-BDS legislation, aiming to protect fossil fuel companies and gun manufacturers from boycotts. The top court’s decision could thus have major implications for the legality of political boycotts writ large.

There is no guarantee the Supreme Court will agree to the ACLU’s request. Reviewing the case would require granting what is known as a writ of certiorari, which needs the assent of four Supreme Court justices. If the Supreme Court does take up the case, it would lead to a first-of-its-kind ruling on whether anti-boycott laws violate the First Amendment. If the court declines to take the case, the lower court’s ruling upholding the constitutionality of Arkansas’s anti-boycott law stands, serving as a binding precedent in the states under the Eighth Circuit’s jurisdiction and a potential model for decisions on anti-boycott laws in other circuits.

Some Palestine advocates worry that the right-wing Supreme Court will uphold anti-boycott laws as constitutional, which would mean overturning the court’s 1982 decision in NAACP v. Claiborne Hardware—a case which established the right to boycott by ruling that Mississippi residents boycotting white-owned businesses to protest segregation were protected by the First Amendment. “I am certainly concerned that the Supreme Court, in its current ultra-reactionary makeup, might decide to basically overturn that 1982 precedent,” said David Mandel, an attorney and member of the National Lawyers Guild and Jewish Voice for Peace. But the ACLU believes the court will affirm the 1982 decision. “Given Claiborne Hardware, the Supreme Court has a strong foundation here to establish that this kind of activity is protected. We’re confident that the Supreme Court will stand by that decision,” said Brian Hauss, senior staff attorney with the ACLU Speech, Privacy, and Technology Project.

The Arkansas case dates back to October 2018, when The Arkansas Times was in negotiations with the University of Arkansas Board of Trustees over renewing advertisements for Pulaski Technical College, a state school that had regularly advertised in the weekly paper. However, once the Board of Trustees informed the newspaper’s publisher Alan Leveritt that the state required him to sign an anti-boycott pledge to maintain the contract, Leveritt refused—not because he wanted to boycott Israel, but because he was opposed to signing a pledge that infringed on his First Amendment rights. Leveritt also refused to accept the 20% reduction in fees that came with not signing an anti-boycott pledge. As a result, the college stopped publishing ads in The Arkansas Times, leading to a loss of income for the weekly paper.

The ACLU decided to sue on behalf of The Arkansas Times in December 2018. In 2019, a district court ruled that the state’s anti-boycott law is permitted under the US Constitution, but that decision was reversed by the Eighth Circuit Court of Appeals in 2021. The state of Arkansas then asked for the full Eighth Circuit panel of judges to rehear the case, and the conservative-dominated appellate court handed down its final ruling—that the anti-boycott law is constitutional—in June of this year. Writing for the majority, Judge Jonathan Kobes said that the Claiborne Hardware decision only protects the speech accompanying a boycott, not the boycott itself, which, in his interpretation, is economic activity unprotected by the First Amendment. Civil liberties advocates take issue with this interpretation of the 1982 decision, arguing that Claiborne Hardware held a boycott itself, and not just speech surrounding it, to be a protected First Amendment activity.

The ACLU’s appeal to the Supreme Court comes at a time when the American judiciary is divided over the constitutionality of anti-boycott laws. The Eighth Circuit—the only appeals court to weigh in thus far—has come out supporting anti-boycott laws, while lower level district courts in Texas, Arizona, Kansas, and Georgia have struck down laws similar to Arkansas’s as violations of the First Amendment. The Fifth Circuit Court of Appeals, another conservative-dominated court, is currently considering the Texas anti-boycott law.

Since no other case concerning political boycotts has been ruled on in recent years, there is little in the way of tea leaves that might help predict how the Supreme Court will rule. But any ruling will have profound implications. “The stakes of this case are essentially whether the government should have the power to selectively outlaw particular boycott campaigns simply because it disagrees with their message,” said Hauss.

A ruling in favor of the ACLU would mean “that the vast majority of Israel anti-boycott laws would swiftly be declared unconstitutional,” Hauss said. In contrast, a ruling holding anti-boycott laws as constitutional is “likely to embolden states to move against other political boycotts they disfavor,” said Ramya Krishnan, a staff attorney at the Knight First Amendment Institute. Some states could even adopt bans on boycotts if the Supreme Court does not repudiate the Eighth Circuit ruling, Krishnan said. “If states are empowered to do that, that’s a very powerful weapon that they can use against political movements that they dislike,” she added.

Given these threats to free speech, even progressive Jewish groups that do not support BDS have spoken out against anti-BDS legislation: T’ruah, a rabbis’ human rights advocacy group, criticized the Eighth Circuit ruling in Arkansas for opening “the floodgates to politically motivated restrictions on any form of boycott.” But mainstream Jewish groups have been friendly to the anti-BDS efforts. In June, the American Jewish Committee praised the Eighth Circuit’s ruling, with the AJC’s chief legal officer Marc Stern commending the court for “unequivocally affirm[ing] that [anti-boycott] laws do not infringe on the First Amendment” and ruling that “taking a position on a boycott does not inhibit free speech.” The Anti-Defamation League (ADL) and the Jewish Federations of North America (JFNA) have stayed silent on the Eighth Circuit decision, though both have supported anti-BDS policy in the past. In 2016, ADL CEO Jonathan Greenblatt celebrated a New York executive order directing state agencies and authorities to divest from any company that supported BDS, and in 2017 the group’s Nevada chapter testified in favor of the state’s anti-BDS bill, which prohibits state agencies from contracting with entities that boycott Israel. The JFNA, meanwhile, helped craft anti-BDS legislation in Texas and North Carolina.

“The organized Jewish community has known from the get-go that [anti-boycott laws] infringed on free speech,” said Lara Friedman, President of the Foundation for Middle East Peace. “Given a choice between upholding free speech and the right of protest for Americans, and undermining those rights writ large in order to protect Israel from criticism, they’ve demonstrated they prefer the latter.”

As part of the Tuesday News Bulletin, Jewish Currents is publishing a photograph taken by members of Activestills every week, archiving ongoing dispossession and resistance from the river to the sea. You can find more information on this collaboration here.

• As Israelis headed to the polls for their fifth election in four years, Palestinians in Gaza and the West Bank were put under Israeli military closure and only allowed to enter Israel for medical and humanitarian emergencies. Such closures are typically imposed on election days or Jewish holidays. The election-day closure of the entire West Bank and Gaza comes less than a week after Israel partially eased its military closure of the Palestinian city of Nablus. Nablus had been put under closure as part of an Israeli crackdown on the Nablus-based militant group Lions’ Den, which claimed responsibility for a series of attacks on Israeli soldiers and settlers.

• On Saturday, a Palestinian man, Mohammed al-Jabari, killed an Israeli settler, Ronen Hanania, in the Israeli settlement of Kiryat Arba near the West Bank city of Hebron. An off-duty military officer then killed al-Jabari. On Sunday, a 49-year-old Palestinian, Barakat Musa Younes, rammed his car into five Israeli soldiers, injuring them.

• On Monday, the human rights organization Democracy for the Arab World Now (DAWN) filed a request to the International Criminal Court (ICC) to investigate Eyal Toledano, the former West Bank Legal Advisor for the Israeli military, as part of the ICC’s ongoing investigation into alleged war crimes committed by Israeli troops (as well as Palestinian militants) in the occupied Palestinian territories since 2014. The request is unusual in its focus on an individual Israeli alleged to be complicit in war crimes. As what DAWN calls the “de facto attorney general of Israel’s military occupation,” Toledano planned, oversaw, or approved demolitions of Palestinians’ homes, the restriction of Palestinian freedom of movement, and the transfer of Israeli settlers into occupied territory. “It is rare that you find one person like Toledano tied to so many types of war crimes and crimes against humanity, and with so much documentary evidence freely available,” Michael Schaeffer Omer-Man, Director of Research for Israel-Palestine at DAWN, said in a statement.

• Last week, Amnesty International asked the ICC to investigate three attacks that took place during Israel’s August 2022 assault on Gaza that an Amnesty investigation revealed to be possible war crimes. Two of the cases Amnesty investigated were Israeli air strikes that killed six Palestinian civilians. The first occurred on August 5th, when an Israeli tank round struck the home of the al-Amour family, killing 22-year-old Duniana al-Amour and wounding her mother and sister. The second occurred on August 7th, when a drone-fired missile killed five children. Amnesty said these attacks must “be investigated as possible war crimes because they appear either to have deliberately targeted civilians or civilian objects or to have been indiscriminate attacks.” The third strike, which killed seven Palestinian civilians, “appears to have been caused by an unguided rocket launched by Palestinian armed groups,” Amnesty reported. The human rights group said that Palestinian militants’ use of such inaccurate rockets within civilian areas is “indiscriminate” and therefore violates the laws of war.

• Five former foreign ministers for European Union countries said Israeli policies towards Palestinians constituted “apartheid.” In a letter published published by French newspaper Le Monde on Thursday, the former foreign ministers of Denmark, Finland, Slovenia, France and Britain wrote that they “see no alternative but to acknowledge that Israel’s policies and practices against the Palestinians amount to the crime of apartheid,” and criticized the international community for failing “to act in the face of serious violations of international law.” Separately, on Friday, Balakrishnan Rajagopal, the UN Special Rapporteur on the Right to Adequate Housing, presented a report that also accused Israel of implementing a system of oppression that has led to the destruction of Palestinian homes and is “nothing short of apartheid.” Israel frequently demolishes Palestinian homes constructed without permits, even though permit applications by Palestinians are frequently denied. Israeli troops also demolish the homes of alleged Palestinian attackers, displacing their families, and in recent years Israeli airstrikes in Gaza have damaged or destroyed thousands of homes.

• AIPAC’s Super PAC, the United Democracy Project, is spending over $680,000 on mailers and TV ads to defeat Summer Lee, a progressive who defeated an AIPAC-backed candidate in May to capture the Democratic Party nomination for Pennsylvania’s 12th Congressional District. Israel is not a key issue in the race, but Lee supports conditioning aid to Israel on respect for human rights. AIPAC’s spending will benefit Mike Doyle, the Republican running against Lee in a Democratic-dominated district. Despite the blue lean of the district, Doyle is in a better position than expected—likely because he shares a name with the popular Democrat whose retirement paved the way for Lee to run. The content of the TV ads is so far unclear, but the mailers don’t mention Israel. Instead, they attack Lee for her positions on the Immigration and Customs Enforcement agency and criminal justice reform. But in interviews with journalists, the spokesperson for AIPAC’s Super PAC said they are opposing Lee because “this is a race where there is clear pro-Israel candidate and an anti-Israel candidate in Summer Lee.” AIPAC’s effective support for the GOP in the race has attracted criticism. In a tweet, Rep. Alexandria Ocasio-Cortez said, “Shamefully, AIPAC is working for Republican control of Congress and further destabilization of US democracy.”