The ACLU intends to bring to the Supreme Court a free speech case against Anti-BDS [Boycott, Divest, Sanction—ed.] laws, following a federal appeals court ruling that boycotts are not expressive conduct and therefore do not fall under the protections of the First Amendment!
In 2018, The Arkansas Times sued the state of Arkansas over the state’s Anti-BDS Law, which required those doing business with the state to affirm that they would not boycott Israel. The newspaper lost in district court, won on appeal, but then lost when the state appealed to the full Eighth Circuit Court of Appeals. (The newspaper is not engaged in a boycott against Israel, but opposed the measure on principle.)
The decision “misreads Supreme Court precedent and departs from this nation’s long standing traditions,” said the ACLU. “It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since.”
Laws against supporting the Boycott, Divest, Sanction (BDS) movement against Israeli government policies have been repeatedly struck down in courts, although they are on the books in dozens of states.
This pernicious foot in the door, via the “Palestine exception” to free speech [restrictions imposed on advocacy for the rights of Palestinians—ed], has led to other states passing laws demanding that companies swear not to boycott fossil fuels or the firearms industry.
It is right for the ACLU to pursue the Arkansas case to the Supreme Court. A victory there would be a powerful vindication of free speech in the United States.
