Supreme Court Declines To Hear Case Against State Law Banning Anti-Israel Boycotts

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The Supreme Court declined to hear a case Tuesday against an Arkansas law that prohibits businesses that boycott Israel from doing business with the state, according to court documents.

Arkansas Act 710 was passed in 2017 to curb a growing movement in the U.S. called BDS, or “boycott, divestment and sanctions,” which encourages companies to divest from Israel for alleged human abuses against Palestinians, according to the act. The Supreme Court released a court order Tuesday declining to review the case, Arkansas Times LP V. Waldrip, Mark, et al., which by default upheld the Eighth Circuit Court’s previous decision to let the law stand.

“The Supreme Court missed an important opportunity to reaffirm that the First Amendment protects the right to boycott,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union (ACLU), who sued over the case. “From the Boston Tea Party to the Montgomery Bus Boycott to the boycott of apartheid South Africa, Americans have proudly exercised that right to make their voices heard. But if states can suppress boycotts of Israel, then they can suppress boycotts of the National Rifle Association or Planned Parenthood.”

Kenneth Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, said in a prepared statement that the court’s decision was a “great” moment for the “cause of justice.”

“This morning, the U.S. Supreme Court let stand an important appeals court victory for anti-BDS legislation and civil rights law by denying cert,” Marcus said. “Like many other states, Arkansas had commendably decided that its state’s taxpayers should not subsidize anti-Semitic boycotts of Israel through their government contracting process. When states prohibit discrimination against other groups, they must be consistent in preventing bias against the Jewish people.”

The lawsuit began in 2018 when the ACLU sued on behalf of the Arkansas Times, which refused to comply with the law, claiming it was compelled speech, according to the lawsuit. A state district court initially ruled in favor of the decision in 2019 after a judge agreed with the assertion that the law was unconstitutional.

However, the Eighth Circuit Court ruled in June 2022 that the law did not violate businesses’ First Amendment rights due to the fact that the law “does not require them to publicly endorse or disseminate a message,” but instead requires financial “compliance.”

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

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