Major Federal Appeals Court Victory Against Anti-Israel BDS Lawfare
Last month the U.S. Court of Appeals for the Eighth Circuit issued a ruling in Arkansas Times, LP v. Waldrip, in which the full en banc court upheld a state anti-discrimination law prohibiting state entities from contracting on ordinary terms with companies that discriminatorily boycott Israel. The opinion dealt a major blow to those who would illegally discriminate against the Jewish state.
The ACLJ filed a critical amicus brief in the case, arguing that the Boycott, Divestment, and Sanctions (BDS) movement operates as a coordinated, sophisticated effort to disrupt the economy of the State of Israel, with the ultimate goal of destroying the sovereign nation altogether. It uses the threat of withdrawing financial support in an effort to coerce companies or other entities to cease or refuse to engage in business relations with Israel, its nationals, and its residents. Moreover, it often intentionally targets for discrimination people who are Jewish or who do business with persons who are Jewish. In its objectives, activities, and effects, the BDS movement is definitionally antisemitic.
Our brief also pointed out that the state of Arkansas does a tremendous amount of business with Israel. Simply put, it makes bad business sense for the state to contract with suppliers and others who are actively engaged in an economic boycott of one of its largest business partners. The law is a clear example of constitutional government speech occurring in the context of a governmental spending program (i.e., commercial contracting for goods and services) within which the state of Arkansas has determined which agendas and viewpoints it will and will not support as a commercial operator. The government is not required to remain viewpoint-neutral in such circumstances. Instead, it is permitted to take or not take a position of its own. In this case, the state of Arkansas has merely chosen not to fund, through commercial contracts, companies that participate in activity at odds with the state’s own commercial policies and interests — the boycott of Israel, its businesses, and its people.
No one is being asked to relinquish any speech rights; rather the terms of the statute merely confirm that the state’s commercial contracting funds are authorized to be spent only in furtherance of the commercial policies and interests of the state. It is the state determining how it will spend money. Contracting with companies that wish to undermine those interests — unremarkably — is therefore not authorized.
A majority of states across the country have adopted similar bills; and while BDS supporters have tried hard to pretend these laws somehow infringe on their First Amendment rights, the language in the Arkansas statute makes clear that it only regulates non-expressive commercial activity, and the first appellate test of the issue has now thoroughly debunked their false claim.
The court agreed that because the purpose of the law is a legitimate expression of government speech, and because it regulates only non-expressive commercial activity, there is no First Amendment violation. A similar case, in which we also filed an amicus brief, is currently pending in the Fifth Circuit. As always, we will continue to fight to protect the interests of America and our closest ally Israel.