by Gary Willig
Court refuses ACLU's request to review lower court decision that anti-BDS law does not violate freedom of speech.
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| US Supreme Court justices 2022 SCOTUS Website |
The US Supreme Court on Tuesday refused to hear a challenge against an Arkansas anti-BDS law, in a victory against anti-israel boycotts in the US.
The Supreme Court's decision not to hear the case upholds the ruling of the Eighth Circuit Court of Appeals that anti-Israel boycotts such as those advocated by the BDS movement are not protected by the First Amendment to the American Constitution because they are do not qualify as either speech or expressive conduct, and therefore, the Arkansas law is constitutional.
The State of Arkansas passed the law requiring companies to certify that they do not and will not boycott the State of Israel in 2017 in order to receive public contracts with the state. The law, one of many state anti-BDS laws passed in the US in recent years, would prevent public funds from being used to boycott Israel.
The Arkansas Times, represented by the American Civil Liberties Union (ACLU), filed a lawsuit in response to the law, alleging that it violates the right to free speech as guaranteed by the First Amendment.
After a series of appeals, the Eighth Circuit ruled that the law "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."
The court further stated that the law does not constitute compelled speech, which would also be unconstitutional.
Following the ruling of the Eighth Circuit, The ACLU turned to the Supreme Court in October 2022 and filed a request for a 'writ of certiorari,' a request that the Supreme Court order a lower court to send up the record of the case for review. The ACLU claimed that the lower court had in its decision ignored the precedent set in the 1982 case NAACP v. Claiborne Hardware Co, which established a level of protecting for political boycotts.
The Supreme Court today denied the ACLU's request for a writ of certiorari.
Professor Eugene Kontorovich, a professor at the George Mason University Scalia Law School, and the director of its Center for Middle East and International Law, praised the Supreme Court's decision.
"The Supreme Court’s rejection of the ACLU’s effort to undermine anti-BDS laws further demonstrates the falseness of claims that these measures harm constitutional values. I am quite proud, as one who has supported these laws since the beginning, and has been involved, along with a great group of law professors, as an amicus in this litigation. Such laws' constitutionality have been upheld by many judges. Groups that oppose such laws now have a heavy burden explaining how they are not simply providing cover for boycotts of Israelis," said Professor Kontorovich.
The states of New York, California, New Jersey, Indiana, Florida, Tennessee, Arizona, Michigan, Montana, Kansas, Texas and Virginia, have also passed anti-BDS laws, in addition to Arkansas. The ACLU has challenged many of these laws in court as well.
In 2021, a federal judge temporarily blocked a Kansas anti-BDS law following a lawsuit by the ACLU.
In September 2018, a federal judge blocked Arizona from enforcing its anti-BDS law.
In Texas, a speech pathologist sued the local public school district after she was let go for refusing to sign an agreement that she “does not” and “will not” engage in a boycott of Israel.
Gary Willig
Source: https://www.israelnationalnews.com/news/367782
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