In a "frightening" assault on free speech, US citizens in the state of Arkansas will be required to pledge not to boycott Israel in any contract with the government. Overturning an earlier ruling that any such contract violates the First Amendment, teachers, doctors and civil servants that refuse to sign the pledge will be required to reduce their fees by 20 per cent.
The ruling by the St Louis-based US Court of Appeals for the Eighth Circuit is seen as a major victory for pro-Israel groups who have pushed around 30 states to adopt laws demanding a pledge not to boycott the apartheid state.
The Arkansas case began in 2018 when the state newspaper, the Arkansas Times, sued the state over its anti-BDS law. It refused to sign a pledge not to boycott Israel in order to win an advertising contract from a public university.
The lawsuit was initially dismissed, but a three-judge appeals panel blocked the law in a split decision in 2021, ruling that it violates the First Amendment which protects the right to free speech. The Eighth Circuit court has again reversed the decision and revived the statute.
One of the dissenting judges raised concerns over its threat to the First Amendment saying that the law is written so broadly that it could go beyond boycotts. "By the express[ed] terms of the Act, Arkansas seeks not only to avoid contracting with companies that refuse to do business with Israel," Judge Jane Kelly is reported saying in Al Jazeera. "It also seeks to avoid contracting with anyone who supports or promotes such activity."
She said the law allows the state – in violation of the First Amendment – to "consider a company's speech and association with others to determine whether that company is participating in a 'boycott of Israel'".
Such speech, which would be prohibited under the law, Kelly argued, may include "posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the Act."
The American Civil Liberties Union (ACLU), a civil rights group that helped the newspaper sue the state, called the ruling "wrong" and a departure "from this nation's longstanding traditions."
Signalling that the judgment will be challenged, Brian Hauss, staff lawyer with the ACLU, said in a statement that the ruling"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. We are considering next steps and will continue to fight for robust protections for political boycotts."
Abed Ayoub, legal director of the American-Arab Anti-Discrimination Committee (ADC), said that the ruling is not "just about boycotts. This is opening the door to strip away First Amendment rights of all Americans. It's very frightening."
Ayoub described the judgment as "very un-America" and explained that it will "flip the First Amendment on its head."