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Last Wednesday, in an opinion that could have a major impact on Americans’ First Amendment rights, the Eighth Circuit Court of Appeals ruled to uphold an Arkansas law preventing state contractors from boycotting Israel. The Eighth Circuit—widely considered one of the most conservative circuit courts in the country—claimed that a consumer boycott of Israel does not count as protected speech under the First Amendment, deeming such a boycott “non-expressive” economic conduct. The ACLU, which represents the plaintiff, The Arkansas Times, has pledged to appeal to the Supreme Court, setting the stage for a major ruling that could either bolster or significantly restrict the right to engage in any kind of politically motivated boycott.
Released just two days before the Supreme Court overturned Roe v. Wade’s guarantee of the right to abortion, the Eighth Circuit decision is a reminder that, even if it had had previously been instrumental in beating back state-level legislation against the Boycott, Divestment, and Sanctions (BDS) movement, the judiciary cannot always be counted on to safeguard civil liberties. “The courts are not a safety net, and the legal system has been used to uphold discriminatory and violent policies,” said Meera Shah, a senior staff attorney at Palestine Legal, which defends the civil liberties of Palestine advocates in the US. “Advocacy for Palestinian rights exposes cracks in the foundation where some of those rights like free speech don’t apply.”
Arkansas is one of 26 US states with laws preventing state contractors from boycotting Israel. Most of the laws passed between 2015 and 2017 in response to a national campaign by right-wing legislative groups, supported by Israel advocacy groups and bolstered by the Israeli government, to legislate against BDS. (While the laws have been enthusiastically promoted by right-wing groups like the American Legislative Exchange Council, they have often passed with strong bipartisan support.) In 2018, The Arkansas Times sued the state because, in order to maintain the newspaper’s advertising contract with a branch of the University of Arkansas, publisher Alan Leveritt was asked to sign a pledge not to boycott Israel, which he refused to do. In 2019, the federal district court dismissed the Times’s suit. On appeal, a three-judge panel from the Eighth Circuit overturned the district court ruling in 2021, finding that the state law “imposes a condition on government contractors that implicates their First Amendment rights.” The state asked for the full Eighth Circuit panel to rehear the case, and it did, resulting in last week’s opinion.
After consulting various experts involved in litigating or supporting challenges to anti-BDS laws, I put together this explainer on the legal issues at stake in the Eighth Circuit decision and how the case might fare at the Supreme Court.
What are the relevant court precedents that impacted the Eighth Circuit decision?
The landmark case that judges and lawyers have cited in considering the legality of anti-BDS legislation is NAACP v. Claiborne Hardware, a 1982 Supreme Court case. In 1966, the Claiborne County, Mississippi branch of the NAACP had coordinated a boycott of local white-owned businesses as a tactic for securing certain demands for racial justice and desegregation. In response, in 1969, a group of white merchants sued the NAACP and other participating organizations for their lost earnings due to the boycott. After multiple Mississippi courts held the defendants liable for the earnings over the next decade, the Supreme Court ultimately ruled unanimously that the activists’ boycott activities were protected by the First Amendment.
The Eighth Circuit ruling on the Arkansas law turns on the question of which parts of the boycott, exactly, the Claiborne decision protects. The ruling notes that requiring someone to “give up a constitutional right” in order to receive a government contract does “impose an unconstitutional condition.” However, the Eighth Circuit argued that Claiborne’s protections apply only to the speech accompanying a boycott, not the boycott itself. In other words, according to the decision, the speeches, picketing, and marches that promote a boycott, like those that the NAACP and other groups conducted as part of their campaign, are protected by the First Amendment, but the actual act of economically boycotting an entity is not. “Contrary to Arkansas Times’s argument, Claiborne only discussed protecting expressive activities accompanying a boycott, rather than the purchasing decisions at the heart of a boycott,” wrote Judge Jonathan Kobes in the majority opinion. Instead, Kobes’s opinion argues, economic boycott decisions count as “non-expressive” conduct unprotected by the constitution. Because an outside observer would not understand the political reason for a commercial decision unless it was explained separately, the decision itself “is not inherently expressive and [does] not implicate the First Amendment.”
Opponents of the ruling, however, say this is a misreading, and that Claiborne’s protections do extend to the purchasing decisions involved in boycotts themselves. “Claiborne clearly establishes that politically-motivated consumer boycotts—including, specifically, the decision to withhold patronage for political reasons—are protected by the First Amendment,” Vera Eidelman, a staff attorney with the ACLU Speech, Privacy, and Technology Project, wrote in an email to Jewish Currents. An amicus brief supporting The Arkansas Times filed by Columbia University’s Knight First Amendment Institute on behalf of 13 First Amendment scholars also argued that Claiborne covers all political boycotts, and not just associated speech.
In Claiborne, “the Court analyzed the NAACP’s boycott and each of its associated elements at length, beginning with the collective refusal to patronize white merchants. And it held that ‘[e]ach of these elements’. . .was protected by the First Amendment,” the brief argues. “The Court could have described the reach of its opinion very differently. It could have explained that only the speech associated with the NAACP’s boycott enjoyed First Amendment protection. Instead it held that the NAACP’s activities were an exercise of the ‘inseparable’ rights ‘of speech, assembly, association, and petition.” In fact, the brief says, if the court had wanted to only note that the accompanying speech and not the boycott itself was protected, they would have just dismissed the case under a previous speech-supporting precedent, Brandenburg v. Ohio, rather than writing the landmark Claiborne opinion.
“The longstanding right to engage in collective boycott as a means of political action has played a very special role in American history. Claiborne recognized this history and the important role that boycotts have played in the political process and held that the First Amendment protects political boycotts by consumers and not just the speech associated by such boycotts,” Ramya Krishnan, a staff attorney at the Knight Institute and co-author of the aforementioned amicus brief, told Jewish Currents. “The Eighth Circuit’s decision eviscerates this protection.”
The Eighth District’s decision also referred to the 2006 Supreme Court case Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR). In that case, the court ruled that the federal government did not violate law schools’ First Amendment rights when it refused to provide federal funding to schools that banned military recruiters from campus to protest the military’s exclusion of openly gay service members. The Court found that banning military recruiters was not inherently expressive, because a bystander might not know that military recruiters were being banned for political reasons. By the same standard, Kobes’s opinion argues, a consumer boycott is not inherently expressive and is therefore not protected. Eidelman, however, argues that FAIR is not applicable. “The case does not address consumer boycotts—indeed, it doesn’t even mention the word ‘boycott,’” she wrote, adding, “Although FAIR established a presumption that conduct cannot become inherently expressive simply through the addition of explanatory speech, it didn’t rob well-defined forms of collective protest—like boycotting or, to take another example, joining in a march or parade—of First Amendment protection.” Krishnan agrees: “FAIR isn’t on point because it isn’t a consumer boycott case. It didn’t involve collective action of the kind that the Claiborne court held was deeply embedded in the American political process, that had this deep historical pedigree.”
In the lone dissenting opinion in the Eighth Circuit case, Judge Jane Kelly, who had written the court’s initial panel opinion deeming the law unconstitutional the previous year, argues that in any case, the Arkansas statute does limit a company’s conduct beyond just economic boycott decisions. She notes that the statute instructs the state to look at the company’s speech about whether it is boycotting Israel to determine whether to enforce the law against them. “Thus, at a minimum, the State can consider a company’s speech and association with others to determine whether that company is participating in a “boycott of Israel,” Kelly wrote. “And the State may refuse to enter into a contract with the company on that basis, thereby limiting what a company may say or do in support of such a boycott.”
How does this decision compare to court rulings on anti-BDS legislation in other states?
As a court of appeals, the Eighth Circuit is the highest court thus far to weigh in on anti-BDS legislation. Previously, federal district courts in Arizona, Georgia, Kansas, Maryland, and Texas have considered challenges to each state’s anti-BDS laws. In Arizona, Georgia, Kansas, and Texas, the courts blocked enforcement of the law, deeming them unconstitutional compelled speech. (In Maryland, the court said the plaintiff did not have standing to sue because he did not have a state contract, and dismissed the case.)
However, the decisions in the four aforementioned states applied to suits brought by sole proprietors. Following the courts’ judgments, each state has since amended its law so that only contracts worth $100,000 or more with businesses employing more than ten people are affected. The sole proprietors, therefore, were released from the obligation to pledge not to boycott Israel, and their cases became moot before reaching the appellate court.
In Texas, the Council on American-Islamic Relations (CAIR) has filed a lawsuit on behalf of an engineering firm owned by a Palestinian American man named Russ Hassouna that contracts with the city of Houston and is big enough to be subject to the newer amended law. This past January, the district court once again blocked enforcement of the law, citing a violation of the constitution. Texas has appealed the ruling to the Fifth Circuit.
The ruling on the Arkansas law will not necessarily impact the ruling on the Texas law, because the Eighth Circuit’s decision is not binding on the Fifth Circuit, said Shah. “But it’s the highest-level court that has looked at these issues, so I imagine the Fifth Circuit will look at it,” she added. “I just hope they look really closely at the dissent.”
The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, so its ruling will be binding on lower courts in those states. In addition to Arkansas, Iowa, Minnesota, Missouri, and South Dakota all have laws prohibiting state contractors from boycotting Israel.
How might the Supreme Court rule?
If the ACLU does indeed appeal the Arkansas case to the Supreme Court, the Court will first decide whether to hear the case at all. Typically, the Supreme Court is most likely to hear such an appeal if there are conflicting rulings in different circuits to resolve. So, for example, if the Fifth Circuit comes out with a ruling that declares the Texas anti-BDS law unconstitutional, in tension with the Eighth Circuit decision, the Supreme Court will be more likely to step in. Still, even if that’s not the case, the Supreme Court might consider intervening if they believe the First Amendment issues at stake are important enough.
The Supreme Court has not taken up the issue of protecting boycotts in recent years, so it’s hard to know how it would rule if it takes up the case. Of course, with this particular Supreme Court, even the strong precedent of support for boycotts from Claiborne doesn’t necessarily guarantee a favorable outcome for the right to boycott. In overturning Roe last week, the Court proved that it is perfectly willing to set aside precedent to push a particular political outcome. To convince this conservative court, the ACLU will probably have to make a strong case that the rights at stake do not just protect boycotting Israel—a cause the Court is unlikely to look upon kindly—but also protect political boycotts used as a tool by the political right.
“The Supreme Court has shown it can’t be trusted to protect fundamental rights,” said Shah. “If this issue is taken up I would hope they do the right thing here.” Given the Court’s unreliability, Shah argues that legal action on the issue must be accompanied by political organizing, including cross-movement solidarity to show how this ruling could impact various social justice struggles, continued state-level pushes to overturn anti-BDS legislation, and continued organizing of BDS campaigns to push back against the repression of the movement.