Throughout 2018 the desk of Alan Leveritt, publisher of the US weekly newspaper the Arkansas Times, was piling up with letters from the state of Arkansas with an unusual demand: either sign a pledge not to boycott Israel or forfeit all state advertising.
It was the outcome of a state law (act 710 of 2017) passed in 2017 by Arkansas’s Republican-dominated legislature that requires government contractors to pledge in writing not to boycott Israel or see their fees reduced by at least 20 per cent.
The paper and its state agency clients simply ignored the letters. But when one of their clients, the University of Arkansas, informed the Arkansas Times that it had to sign the anti-boycott pledge in order to continue running its advertisements, things got more difficult as there was a price to pay.
Either succumb to compulsion by the state of Arkansas to take a political position or endure financial losses by refusing to do so and reduce advertisement rates by 20 per cent. The paper opted for the latter option, and with the help of the American Civil Liberties Union (ACLU) also sued the state of Arkansas in December 2018 in a bid to overturn the law on free-speech grounds.
Two federal courts had already blocked similar laws in Arizona and Kansas citing First Amendment violations under the US Constitution and free-speech rights. The US Supreme Court has long held that political boycotts are protected by the First Amendment.
The decision on 23 January by US district judge Brian Miller to throw out the lawsuit was thus unexpected. In his 17-page opinion, Miller wrote that the paper “has not demonstrated that a boycott of Israel, as defined by Act 710, is protected by the First Amendment.”
Leveritt told the Weekly in an email that his paper was going to appeal with the hope of getting the decision overturned. The court’s decision puts “a lot of pressure on our publication because if we do not sign, it could have a devastating effect on our financial situation,” he explained.
“We are a small, local publication in a relatively poor state and government advertising, mostly related to higher education and health, has always been a significant category.”
The Arkansas Times, a local publication focused on Arkansas affairs, has never engaged in the boycott of Israel and says it does not intend to do so.
“Our position is that under the First Amendment, no government can compel us to take a political position one way or another,” Leveritt told the Weekly. If the law had required his paper to promise not to boycott Palestinian products and businesses, he would still have fought it, he said.
PEN America, the prestigious 92-year-old organisation that defends free expression in the US, described the Arkansas law as “deeply troubling.”
“The ruling from the Arkansas district court failed to consider other important federal court rulings around the country that have protected this kind of speech as a core First Amendment right,” said Nora Benavidez, director of US Free Expression Programmes at PEN America.
“Constitutional protections cannot be applied selectively based on one’s viewpoint, and this decision sets an alarming precedent for Americans’ right to freely exercise their political beliefs in ways clearly protected by the First Amendment,” she added.
The federal court decision is a blow to the ACLU and the boycott, divestment and sanctions of Israel (BDS) movement. Already, 26 states have enacted similar anti-BDS laws or executive orders. While the state of South Carolina was the first to pass such a law in June 2015, the trend picked up following the election of president Donald Trump who took office in 2017.
The BDS movement is inspired by and modeled on the anti-apartheid movement against South Africa in the 1970s and 1980s.
Efforts to pass a federal anti-BDS bill failed in the previous Congress, but this is now changing. Attempts to pass a modified version of the bill in the newly elected Congress since early January were obstructed because of the partial federal government shutdown that ended last week.
On Monday, the Senate overwhelmingly voted by 74 to 19 to advance the anti-BDS bill, called the Strengthening America’s Security in the Middle East Act of 2019.
The bill, which includes wording that encourages US states to adopt anti-BDS laws, is expected to pass. Currently, 13 states are considering similar anti-Israel boycott laws.
It could make court battles against America’s pro-Israel laws more challenging.
“If this law stands, then the government has the power to threaten the press with all kinds of financial pressures to make us toe a party line,” said Leveritt of the Arkansas Times. “We don't do that in America, at least not so far.”
“We expect this kind of religious, right-wing, poorly thought out legislation from our local legislators,” he added. “I am shocked that is even being given a serious hearing in Congress.”
*This story was first published in Al-Ahram Weekly