Top US court to reconsider legislation barring boycotting Israel: ACLU

• The American Civil Liberties Union (ACLU) has petitioned the Supreme Court.
• It is to overturn an Arkansas state law that punishes businesses that boycott Israel.
• The organization safeguards the right to free speech.

A leading American civil rights organization has petitioned the Supreme Court to overturn a lower court’s decision upholding an Arkansas state law that punishes businesses that boycott Israel.

The American Civil Liberties Union (ACLU), alleging that the Appeals Court judgment violates the First Amendment of the US Constitution, which safeguards the right to free speech, filed a petition on Thursday requesting the top court to take up the matter.

In their filing, attorneys for the ACLU stated that when a state targets out certain boycotts for punitive punishments, as Arkansas has done in this case, it violates both the First Amendment’s underlying prohibition on content and viewpoint discrimination and the freedom to boycott.

The appeals court decided in favor of the statute in June, stating that boycotts do not qualify as “expressive conduct” protected by the First Amendment but rather as economic activity.

The bill is modeled after similar regulations adopted by a number of US states to stifle the Boycott, Divestment, and Sanctions (BDS) movement, which seeks to encourage Israel to stop mistreating Palestinians through nonviolent means.

Amnesty International and Human Rights Watch are two rights organizations that have compared Israel’s treatment of Palestinians to apartheid.

The Arkansas Times, a newspaper in Little Rock, filed a lawsuit against the state in 2018 after refusing to sign a promise not to boycott Israel in exchange for an advertising contract with a public university. This is when the Arkansas case got underway.

The law mandates a 20% fee reduction for contractors who do not sign the pledge.

A three-judge appeals panel blocked the statute in 2021 after a federal trial court had dismissed the claim on the grounds that it violated the First Amendment.

A full appeals court overturned the panel’s judgment in June, basically bringing the law back to life.

In the US judicial system, the Supreme Court serves as the last line of defense and review. The appeals court’s ruling will stand if the supreme court declines to hear the case.

Three of the nine-member Supreme Court’s justices were chosen by former president Donald Trump, a fervent supporter of Israel, giving the court’s conservative majority.

Rights activists have cautioned that anti-boycott regulations are being used to stifle boycotts of other industries, such as the fossil fuel business, and to press for the unconstitutional silencing of Palestinian rights advocacy.

The June ruling upholding the anti-BDS statute in Arkansas “badly misreads” legal precedents, according to Brain Hauss, a senior staff attorney with the ACLU, and withdraws protection for freedoms enjoyed by Americans for millennia.

Hauss said in a statement on Thursday that the judgment “worse still, affirms the government’s right to arbitrarily prohibit boycotts that reflect sentiments with which the government disagrees.”

“The Supreme Court ought to hear this case to reaffirm that the First Amendment safeguards the freedom to engage in boycotts of products with political overtones.”
The advocacy group Americans for Peace Now (APN), which identifies itself as pro-Israel and pro-peace, also urged the Supreme Court to revisit the decision.

If the Supreme Court decides to hear the case, Hadar Susskind, the president of APN, said in a statement that it “may have enormous consequences in the United States and beyond.”

“We hope the Court deliberates the issue and determines that states have no power to restrict people’s, groups’, and businesses’ free expression rights. You may be in favor of or against boycotting Israel or the occupation, but you cannot impose your viewpoint on others or penalize them for holding it.

Boycotts against Israel and all Israeli-occupied areas are frequently prohibited under anti-BDS legislation. Following Ben & Jerry’s decision to cease operations in the Palestinian West Bank, numerous US states threatened sanctions against the ice cream maker last year.

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