US Supreme Court declines to review pro-Israel pledge requirements

The US Supreme Court has declined to review a law in the State of Arkansas which requires every government contractor to pledge loyalty to Israel by not supporting the global Boycott Divestment and Sanctions campaign against the apartheid state. The justices turned away a challenge to the anti-boycott pledge by the Arkansas Times.

The newspaper was represented by the American Civil Liberties Union (ACLU). The not-for-profit organisation founded in 1920 was set up to defend and preserve rights guaranteed by the US Constitution including the First Amendment, which protects the right to free speech.

The ACLU asked the court to overturn the Arkansas law on the grounds that it is not only a violation of the First Amendment, but it also contradicts the court’s own ruling 40 years ago that popular boycotts have a long tradition in American history and are protected speech under that constitutional amendment.

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Passed in 2017, the Arkansas law requires public contracts to include a pledge that the contractor is not engaged in a “boycott” of Israel. This includes a pledge not to take “actions that are intended to limit commercial relations” with Israel or “Israeli-controlled territories”. It applies to all contracts worth at least $1,000.

The loyalty to Israel legislation in Arkansas is one of more than 30 similar laws passed by states across America in recent years. Pro-Israel lobby groups such as the American Israel Public Affairs Committee (AIPAC), with the backing of the Israeli government, have campaigned vigorously for such laws. Two years ago, for example, US legislator Deborah Silcox revealed that she was under pressure from Israel to introduce a bill against BDS.

In another well-known example in Texas, a language specialist who works with autistic and speech-impaired primary school children, Bahia Amawi, was fired after she “refused to sign an oath vowing that she ‘does not’ and ‘will not’ engage in a boycott of Israel.” After Amawi successfully sued, Texas narrowed the scope of the law to exclude individuals, and to apply it only to larger companies. The ACLU and other groups also won judgements in Arizona and Georgia that anti-boycott laws intruded on the right to free speech.

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The Arkansas Times sued in 2018 after it was informed that in order to run advertisements for the University of Arkansas Pulaski Technical College it must agree to the pro-Israel pledge. Although the publication had been advertising contracts with the university for years, the 2017 law meant that the contract would only be extended if it signed the Israel loyalty pledge. The paper said that it had not participated in a boycott against Israel, but refused to sign nevertheless, arguing that the pro-Israel measure required taking a political position in return for advertising.

The editor of the Arkansas Times, Alan Leveritt, is reported as saying that he was disappointed that the Supreme Court declined to take the case, but this will not change his position. “We’re not going to sign any political pledges in return for advertising,” he insisted. “The Supreme Court can ignore our First Amendment rights but we’ll continue to exercise them vigorously.”

The ACLU’s chief litigator in the case, Brian Hauss, described the court’s decision not to take it up as a “missed opportunity” to clarify the law. “From the Boston tea party to the Montgomery bus boycott to the boycott of apartheid South Africa, Americans have proudly exercised that right to make their voices heard,” he explained. “But if states can suppress boycotts of Israel, then they can suppress boycotts of the National Rifle Association or Planned Parenthood. While we are disappointed with the result in this case, the ACLU will continue to defend the right to boycott in courts and legislatures throughout the country.”

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