Lawsuits Seek to Stop Censure of Israel Boycott Movement

The ACLU is fighting efforts by state legislatures to force contractors to pledge they won’t back BDS.

A pro-Palestinian protester holds a placard reading "BDS" (boycott, divestment, sanctions) at an event celebrating Tel Aviv in central Paris on Aug. 13, 2015. (Kenzo Tribouillard/AFP/Getty Images)
A pro-Palestinian protester holds a placard reading "BDS" (boycott, divestment, sanctions) at an event celebrating Tel Aviv in central Paris on Aug. 13, 2015. (Kenzo Tribouillard/AFP/Getty Images)

Alan Leveritt, the publisher of the Arkansas Times, a left-of-center newsweekly based in Little Rock, recently received an ultimatum from a local community college that advertised in the paper: Sign a pledge never to support boycotts of companies doing business in Israel or face a cutoff of its paid ads.

Leveritt didn’t take kindly to the idea of anyone telling him what he could or couldn’t say—especially state legislators. He decided to join forces with the American Civil Liberties Union (ACLU) and launch a lawsuit to challenge an Arkansas law that requires contractors doing business with state-funded institutions to promise not to back such boycotts.

Leveritt said he never had any intention of supporting a growing national boycott movement against Israel and that his alternative newspaper generally focuses on local news, culture, and politics. But the issue is bigger than that, he said.

“This has nothing to do with Israel or anti-Semitism—it’s strictly that the state should not have the right to compel speech, and that is what they are doing,” Leveritt told Foreign Policy. “What possible state interest is there in basically promoting the foreign policy of a foreign power?”

The Arkansas Times case is one of a number of legal challenges to recent laws passed by Republican and Democratic legislatures in 26 states around the country that are aimed at crippling the so-called boycott, divestment, sanctions (BDS) movement to penalize companies that do business in Israel or Israeli settlements. More than a dozen states, including Arkansas, have adopted laws requiring government contractors to certify that they are not participating in boycotts, according to the ACLU.

The Israeli government and its American supporters, including Democratic and Republican lawmakers and pro-Israel lobbyists such as the American Israel Public Affairs Committee, have been leading a vigorous campaign to thwart the boycott movement.

But some of the laws have been challenged by the ACLU and other litigants as infringing on Americans’ right to free speech. Courts in Arizona and Kansas have ruled anti-boycott legislation unconstitutional. An Arkansas judge is currently weighing whether to uphold the law or strike it down.

The Republican-controlled Senate has tried to strengthen the hands of state legislatures. Last week, Sens. Marco Rubio, James Risch, Cory Gardner, and Mitch McConnell introduced their first piece of legislation for the year—Strengthening America’s Security in the Middle East Act of 2019—an omnibus bill that would guarantee billions of dollars in U.S. military assistance to Israel over the next decade, shore up security cooperation with Jordan, sanction Syrian leader Bashar al-Assad’s regime, and provide legal cover for states that pass anti-boycott laws.

Most of the provisions in the legislation enjoy broad bipartisan support in the Senate. The portion of the bill dealing with the Israel boycott—the Combating BDS Act of 2019, which encourages states to prohibit the hiring of contractors that support the “boycott, divestment, or sanctions” of companies or individuals that do business in Israel or Israeli-controlled territories—has come under fire.

“In the midst of a partial government shutdown, Democratic and Republican senators have decided that one of their first orders of business … should be to sneak through a bill that would weaken Americans’ First Amendment protections,” Kathleen Ruane, a senior legislative counsel for the ACLU, said in a statement to FP. The Combating BDS Act, she said, “encourages states to adopt the very same anti-boycott laws that two federal courts blocked on First Amendment grounds. The legislation, like the unconstitutional state anti-boycott laws it condones, sends a message to Americans that they will be penalized if they dare to disagree with their government.”

Political boycotts have a long history in the United States. During the civil rights movement, African-American leaders organized the successful Montgomery bus boycott after Rosa Parks, a black woman, was arrested in 1955 for refusing to give up her seat to a white passenger.

The Israel boycott movement, which has been gaining strength on U.S. college campuses, is modeled on the 1980s campaign to force universities and other institutions to divest in entities that favor South Africa’s apartheid government.

Proponents say the effort is designed to penalize companies that help support Israeli settlements, which are considered illegal under international law, if not under U.S. law.

But opponents of the boycott movement, which includes the Israeli government and powerful Democratic and Republican lawmakers, have characterized it as an anti-Semitic campaign to undermine Israel’s legitimacy.

The Israeli government praised U.S. congressional efforts to thwart the boycott movement.

“The U.S. Congress is again at the forefront of the effort to strengthen the U.S.-Israel relationship,” said Danny Danon, Israel’s U.N. ambassador. “In leading the charge against the anti-Semitic BDS movement, which demonizes and singles out the world’s only Jewish state, it is making a strong statement about the movement’s lies and hatred. We thank the U.S. lawmakers who are rejecting anti-Semitism and keeping the U.S.-Israel relationship strong and bipartisan.”

For now, it remains unclear whether the legislation, which would normally have secured enough votes for adoption, will pass the Senate.

Republican senators will need 60 votes to adopt the legislation, meaning they require the votes of seven Democrats. A number of influential Senate Democrats, including Sens. Chris Van Hollen and Cory Booker, are committed to blocking the passage of any legislation before the government shutdown is ended.

The bill is also unlikely to receive support in the House.

“We’re not going to touch it,” said a House congressional aide, noting that it would inject a politically divisive issue into the chamber at a time when Democrats are trying to show a united front in the face of the government shutdown.

For the time being, the state of Arkansas has provided Leveritt with a way to continue doing business with it: agree to lower his advertising fees by 20 percent to avoid signing the anti-BDS pledge. “[T]o hell with them,” Leveritt wrote in an opinion piece. “We were not going to pay a 20 percent tax for the right to hold beliefs independent of the Arkansas Legislature, at least not without a fight.”

Colum Lynch is a senior staff writer at Foreign Policy. Twitter: @columlynch

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