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Eighth Circuit Court Rules: “Anti-BDS” Law Does Not Violate Freedom of Speech

It is well known among pro-Israel activists that the BDS movement, the one calling for the boycott of the only Jewish state, is a hateful, antisemitic project, despite its poor attempts to mask as a social cause. To actively fight it, over 30 states have adopted in recent years laws against the boycott of Israel. However, despite this much welcomed development in pro-Israel legislation, I have met pro-Israel activists who feel uncertain about whether such laws are needed, or constitutional. The main concern that was expressed by those hesitant about these laws is that they violate free speech, and thus can potentially backfire, a position that is promoted by many anti-Israel groups.

For those still unsure about the “anti-BDS” laws or straggling to explain it on the grounds of free speech, this week’s ruling by the United States Court of Appeal for the Eighth Circuit is a document worth reading. Published on June 22, it upholds a 2017 Arkansas law that prohibits state entities from contracting with private companies unless the contract includes a certification that the company is not engaged in a boycott of Israel. The court’s opinion presents important points that clarify why the Arkansas “anti-BDS” law is not unconstitutional and does not violate freedom of speech.

According to the opinion, the law in question defines “boycott of Israel” as (1) “engaging in refusals to deal”; (2) “terminating business activities”; or (3) taking “other actions that are intended to limit commercial relations with Israel … in a discriminatory manner.” The third category is the one in dispute, where the opponents of the law argue “that the catch-all ‘other actions’ language includes constitutionally protected activity” such as speech. When examining the law, the Court uses different tools to consider its constitutionality, including looking at the legislative intent, the language, and the subject matter.

After explaining all statutory interpretation tools used, the Court concludes that “to the extent that there is any remaining ambiguity” the legislature’s motive for passing the law “was primarily economic.” Meaning, the reason to pass the “anti-BDS” law was to address concerns “for the commercial viability of companies that refuse to do business with Israel and the effect this could have on the state’s finances,” because companies that “make discriminatory decisions on the basis of national origin” can risk business partners and their investments when not giving access to Israeli innovations. Thus, the Court explains, the Arkansas law prohibits purely commercial, economic decisions that discriminate against Israel, but it does not ban a company from publicly criticizing Israel, or even protesting the law itself, and so it does not violate the First Amendment.

The takeaway then for those trying to understand the law and the opinion is to differentiate between the commercial business decisions that is the economic activity, and the speech expressions themselves. While every company can openly say what it wants about Israel and its policies, the law will not allow to spend state funds with a company that engages in risky financial choices that can hurt business when these are driven by discriminatory views. If a private business wants to boycott Israel, it can do so but cannot expect the state to support its choice of economic bigotry.

While according to news reports those who oppose the law are expected to appeal this week’s decision, it will hopefully remain standing. This Court of Appeals ruling is a major step in support of the efforts of so many to fight the hateful BDS movement in the past years, and is a welcomed step that both protects the Jewish people and Israel against ugly discrimination, and also serves the American people’s best economic interests.

About the Author
Valeria Chazin is the co-founder and board of directors chair of Students Supporting Israel. She is a speaker on topics of Israel and Zionism, and an activist in the Jewish community.
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