Anti-BDS Legislation

Esther Koontz teaches math in Kansas public schools. In July 2017 she was asked to work as a trainer in a state math and science program, and before she could take the contract she was handed a document to sign. It certified that she was not boycotting Israel.

She had in fact been avoiding Israeli products and products from companies operating in the occupied territories, as a matter of conscience. She declined to sign, and she did not get the work.

Alan Leveritt publishes the Arkansas Times in Little Rock. His paper had never taken a position on boycotting Israel and did not intend to. To renew a routine advertising contract with a state college, he was required to sign the same kind of pledge. He refused:

“We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And, as journalists, we would be unworthy of the protections granted us under the First Amendment.”

A math teacher and a newspaper advertising department. Neither had anything to do with foreign policy. Both were asked to make a written declaration about a foreign country in order to do ordinary business with their state.

What the laws do

Starting in 2014, more than thirty states enacted laws restricting boycotts of Israel. The details vary, but the standard mechanism is a certification requirement: to hold a government contract, a person or company must certify in writing that it is not boycotting Israel and will not do so.

These are the only laws in the United States that condition public contracts on a pledge concerning a specific foreign country. There is no equivalent for any other nation on earth.

Congress has repeatedly tried to pass a federal version. In 2019 a bipartisan group of 73 senators passed the Combating BDS Act, and appropriators tried attaching anti-boycott language to funding bills. No federal statute has been enacted, but state law now covers most of the country.

The precedent everything runs into

The constitutional problem is not novel, and it does not depend on anyone’s view of the boycott movement.

In 1982, in NAACP v. Claiborne Hardware Co., the Supreme Court held that politically motivated boycotts are protected by the First Amendment, and said such boycotts occupy “the highest rung of the hierarchy of First Amendment values.” That case came out of a civil rights boycott of white-owned businesses in Mississippi. It is the foundation of every challenge that has been brought.

Federal district courts in Kansas, Arizona, Texas and Georgia struck down their states’ certification laws on that basis. Granting Koontz an injunction in January 2018, Judge Daniel Crabtree wrote that “the Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”

Amending the law instead of defending it

Something worth noticing happens repeatedly in this litigation.

When a court signaled that a law was likely unconstitutional, the legislature frequently did not defend it to final judgment. It amended the statute so that it no longer reached the particular plaintiff, usually by raising the contract-value threshold or exempting individuals.

That mooted the lawsuit. It also left the law standing for everyone else, while removing the person with standing to challenge it. The pattern preserved the statutes and prevented rulings on them at the same time.

Arkansas

The Arkansas Times case broke the pattern by running all the way through, and it did not end where the earlier cases had.

An Eighth Circuit panel ruled in February 2021 that Arkansas’s Act 710 violated the First Amendment, finding it written broadly enough to reach not only the refusal to deal but the promotion and support of boycotts.

The full Eighth Circuit then reversed its own panel. Sitting en banc in June 2022, it upheld the law, accepting the state’s argument that the statute regulated unexpressive commercial conduct, the bare act of declining to purchase, rather than protected expression.

In February 2023 the Supreme Court declined to hear the appeal.

So the question is unresolved and the answer depends on geography. Four district courts say these laws are unconstitutional. One federal appeals court says otherwise, and its ruling binds its circuit. Whether an American can lawfully be required to disavow a political boycott to get a public contract currently depends on which state they live in.

Both sides of it

The states and the advocacy organizations that back these laws argue they regulate commerce rather than speech. On their account, refusing to buy something is economic conduct, the government need not subsidize it through its contracting, and the statutes function as anti-discrimination measures. The Eighth Circuit accepted a version of that.

The ACLU and the plaintiffs argue the laws compel speech and penalize protected expression, conditioning a public benefit on surrendering a constitutional right, contrary to Claiborne Hardware and to USAID v. Alliance for Open Society, in which the Supreme Court held in 2013 that the government cannot require an organization to profess a particular view as a condition of funding. Four federal courts agreed.

Why it matters

Most of this category involves pressure, consequence and informal chilling, all of which require argument about motive. This one does not. These are public statutes, the cases are public records, and the constitutional question is live in the federal courts.

What the record establishes is narrow and hard: more than thirty states now condition government contracts on a written pledge about one specific foreign country, a requirement that exists for no other nation. Four federal courts have held that unconstitutional. The one appeals court to rule on the merits disagreed, and the Supreme Court left the conflict standing.

And when the laws were tested, legislatures repeatedly rewrote them to make the plaintiffs go away rather than defend them to judgment, which is not the behavior of people confident in what they have drafted.

This is not suppression by pressure. It is suppression by statute, which is the most formal instrument a government has.

Sources

• NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
• USAID v. Alliance for Open Society International, 570 U.S. 205 (2013)
• Koontz v. Watson, U.S. District Court for the District of Kansas, preliminary injunction, January 2018
• Arkansas Times LP v. Waldrip / Arkansas Times LP v. Vandergriff, Eighth Circuit panel decision February 12, 2021; en banc decision June 22, 2022; certiorari denied February 2023
• ACLU litigation materials on anti-boycott laws, including “Third Federal Court Blocks Anti-BDS Law as Unconstitutional,” April 2019
• Lawfare, “Eighth Circuit Strikes Down Arkansas’s Anti-BDS Law,” March 1, 2021, and “Eighth Circuit Upholds Arkansas Anti-BDS Law,” July 8, 2022
• Harvard Journal of Law & Technology Digest, analysis of the Eighth Circuit panel decision, 2021
• Palestine Legal, “Legal Challenges to Anti-Boycott Laws,” updated September 2023