[T]he Eighth Circuit Court of Appeals, among the most right-wing courts of appeal in the country, ruled that an Arkansas state anti-BDS law was constitutional. This is the first state anti-BDS law that has survived judicial scrutiny–other state anti-BDS laws challenged in court have been struck down. Law professor David Schraub provides a good analysis; the upshot is that the Eight Circuit thinks that boycotts are not expressive conduct and therefore do not merit First Amendment protection.
Truah, which does not boycott Israel, points out that “a company that refuses to do business with Jews or with Israeli nationals in the US would certainly be guilty of discrimination based on religion or national origin. Countries, by contrast, are not protected under anti-discrimination laws.”
Can anyone seriously believe that boycotts are not speech? Truah has called for “clothing manufacturers to boycott cotton from China, where it is produced through slave labor by Uyghurs.” Isn’t it obvious that a law restricting the right to engage in a boycott of China would be an unconstitutional restriction of speech? We might not like boycotts of Israel–I don’t. . .–but the way to fight them is to argue against them on the merits, not to use the power of the government to shut them down. One day, we could be the targets of government restrictions on speech. This amicus briefexplains in detail why the Arkansas law is unconstitutional. The next stop is the U.S. Supreme Court.
Regardless of whether state anti-BDS laws are constitutional, they are bad policy because they are ineffective, unnecessary, and counterproductive. Anshel Pfeffer explained in 2020 that “the Israel boycott movement is a dismal failure, but the hard-right in the U.S. and Israel is determined to keep it alive” because fear of BDS suits their political objectives.
Pfeffer called the BDS movement “the most failed, overhyped and exaggerated campaign in the first two decades of the 21st century.” Israel’s status as “the start-up nation” and economic relations between Israel and its Arab neighbors evidenced by the Abraham Accords is proof of BDS’s failure. Not only has “BDS failed on every front, with the minor exception of bullying a handful of singers and academics not to take part in concerts or conferences in Israel, but the 15 years of the BDS campaign had seen an unprecedented surge in Israeli trade and broadening of its foreign relations. If anything had gone global during the decade and a half since BDS was launched, it has been Israel.”
Remember the story about the boy who keeps clicking his fingers? His teacher asks him why he won’t stop, and he replies that clicking his fingers keeps the tigers away. “There are no tigers around here,” his teacher says. “See?” says the boy, “it works!”
Our right-wing friends who use irrational fears of BDS to wage fundraising campaigns need to stop clicking their fingers–the only beneficiary of their efforts is the BDS Movement, which gets tons of free publicity and uses these controversies to pit the pro-Israel community against the free speech community.
Some state anti-BDS laws conflate Israel and the West Bank even though the West Bank is not part of Israel (which means boycotting the West Bank is not boycotting Israel). But the last time I checked, settlers in the West Bank somehow survived the inconvenience of having to drive ten minutes into Israel to buy Chunky Monkey, and despite the headlines about a few states taking action against Unilever, the parent company of Ben & Jerry’s, all of these wonderful state anti-BDS laws have not changed Ben & Jerry’s decision–but they have given plenty of panderers a chance to prance and preen about how much they love Israel without actually doing a damn thing for Israel or to help solve the two biggest problems Israel faces: lack of progress toward a two-state solution and lack of progress toward reentry into the JCPOA.