A federal appeals court in St. Louis heard a case last week from Arkansas that challenged that state’s anti-boycott, divestment and sanctions (BDS) law.

Alan Leveritt, the publisher of the Arkansas Times newspaper, filed a lawsuit against the state in October 2018 because he said he had lost government advertising contracts over his refusal to certify that he was not participating in boycotts of Israel or Israel-controlled territories. The certification was necessary because the state passed a law in 2017 which prohibits state agencies from signing contracts with companies that boycott Israel.

The suit is the latest challenge to the anti-BDS laws that 28 states have approved, according to the Jewish Virtual Library. Courts have struck down several of the laws on the grounds that they violate a person’s First Amendment rights. 

But a federal judge in Arkansas dismissed the lawsuit in January 2019, stating that a boycott of Israel was not speech and not constitutionally protected. 

Leveritt’s newspaper had regularly run advertisements for Pulaski Technical College, which was absorbed into the University of Arkansas system in February 2017. In 2018, the paper and the college were preparing to enter into a contract for advertising when Leveritt was informed that he would need to sign a certification that he would not engage in a boycott of Israel. The law states that Leveritt could still receive the contract without the certification if he agreed to “provide the goods or services for at least twenty percent (20%) less than the lowest certifying business.”

Leveritt had not been engaged in a boycott of Israel.

“In other states where similar laws have been passed, citizens have sued because they support the boycott against Israel based on how that country is treating the Palestinians,” Leveritt wrote in an op-ed. “We’re focused on Arkansas at the Arkansas Times and have never editorially advocated for a boycott of Israel. But as journalists, citizens and taxpayers, we dispute the right of the state to impose any ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit.”

Leveritt, represented by American Civil Liberties Union attorneys, appealed the Arkansas judge’s dismissal. 

“From the Boston Tea Party, to the Montgomery bus boycott to the boycott of apartheid South Africa, consumer boycotts have been deeply embedded in American politics,” Brian Hauss, staff attorney with the ACLU, said last Wednesday morning in the Thomas F. Eagleton Courthouse in downtown St. Louis. 

Hauss cited the U.S. Supreme Court’s decision in NAACP v. Claiborne Hardware Co., a landmark 1982 civil rights case. That case stated people had a constitutional right to conduct a boycott to seek political change. 

A justice questioned Hauss on whether in comparison to the Claiborne case, his client has “similar elements that are evident in this case.”

Hauss said that the act in question in the Claiborne case — a 1966 boycott of businesses in Mississippi as part of a demand for more jobs for black people — was “constitutionally protected speech….The Supreme Court recognized that the power of the government to regulate economic activity could not justify a complete suppression of a non-violent, politically motivated boycott, and that is essentially the power the government is claiming (in Arkansas).”

Nicholas Bronni, the solicitor general of Arkansas, representing the defendant, argued that “refusing to buy or sell goods or services based on national origin is neither speech nor inherently expressive, that’s true whether the refusal is motivated by politics or prejudice, whether its individual or collective and whether it’s called a boycott or called something else.”

U.S. Circuit Judge Jane L. Kelly questioned why the state had used the term boycott, which “does seem to pull in a lot of expressive conduct, as Claiborne has described?”

Bronni responded that Kelly was right, the statute could have been drafted differently, but “the fact that the statute defines boycott as a refusal to deal resolves that issue.”

Bronni told the court that the statute applies to commercial conduct, not speech or traditional advocacy and that the Claiborne decision did not hold such conduct as a violation of the First Amendment.

But U.S. Circuit Judge Michael J. Melloy questioned him on whether having to sign a certification that you would not engage in a boycott of Israel was in fact communicative. 

“You have to put out a public document that says, ‘Yes, we are boycotting or no, we’re not boycotting,’” Melloy said.

Bronni described it as an “ordinary certification of the type that governments require for all kinds of contracts. It’s the type of certification that is routinely required. It’s not a political message.” 

Outside the courthouse, Hauss said the fact that a company could still receive a government contract without certifying that it would engage in a boycott of Israel if it provided their goods at a 20% discount was further evidence that it violates the First Amendment. 

“This law suffers from the same fundamental defect as the other anti-boycott laws that have already been blocked by federal courts in Kansas, Arizona and Texas, which is that it specifically targets consumer boycotts of Israel based on their viewpoint. I think this law suffers from an additional defect, which undermines the government’s asserted anti-discrimination interest here, which is that it lets contractors out of the certification requirement if they are willing to give the state a 20 percent discount on their contracts. If the state was genuinely concerned about discrimination, it wouldn’t let the contractors out of the certification in exchange for a 20 percent discount,” Hauss said. 

The case has attracted national attention. In an NBC op-ed, Jeremy Ben-Ami, president and founder of J Street, a left-leaning Israel advocacy organization, and Rabbi Jill Jacobs, executive director of T’ruah, a Jewish human rights organization, wrote that they do not support the BDS movement but that “a true commitment to the First Amendment requires us to defend the principles of free speech even, and especially, when we find it objectionable or offensive.”

The groups also filed an amicus brief in support of the Times. 

The court is not expected to rule on the case for several months.