The Supreme Court sleeps on defending boycotts and the right to political expression

: Defending Rights & Dissent

In an absurd ruling, the Eighth Circuit denied that boycotts are political expression. Now, the Supreme Court has denied writ of certiorari, letting the Eighth Circuit’s ruling in Arkansas Times LP v. Waldrip stand. This is a missed opportunity for the Supreme Court to take a stand for the proud tradition of political boycott in the United States.

During the American Revolution, if you asked the Sons of Liberty whether boycotts of British goods were political, you’d get an unequivocal answer. Same if you asked Jews boycotting goods from Nazi Germany whether they intended to express a political message. Or civil rights activists boycotting Montgomery buses. Defying this proud American tradition and the last fifty years of jurisprudence, the Eighth Circuit recently held that boycotts are “purely commercial, non-expressive conduct.” By declining to hear the case, the Supreme Court has declined an opportunity to reiterate that the First Amendment protects the right to political boycott. The omission of Arkansas Times LP v. Waldrip from the Supreme Court docket marks a disappointing refusal to stand by long-held constitutional tenets.


The case

In 2017, the state of Arkansas singled out the Boycott-Divestment-Sanctions (BDS) movement by passing a law requiring state contractors to certify that they will not boycott Israel for the duration of the contract. A courageous newspaper editor – Alan Leveritt of the Arkansas Times – challenged the law on First Amendment grounds. As upheld by the Supreme Court, just as the government can’t censor most speech, neither can it compel it. The Arkansas Times had no intention of boycotting Israel, nor would Israeli companies on the BDS list be likely to advertise in a local weekly newspaper. Leveritt says he refused to sign the anti-BDS certification because it “requires the Arkansas Times to take a political position in return for advertising.” (The Arkansas Times was considered a state contractor because the local branch of the University of Arkansas placed an ad in the newspaper.) The Arkansas Times took a principled stand for the Constitution, taking the issue to the courts. After the District Court dismissed the lawsuit, a three-judge panel on the Eighth Circuit struck down the law in a 2-1 ruling. Disregarding the body of First Amendment law, the full Eighth Circuit then decided to hear the case en banc, a rare step reserved for complex constitutional issues.

Previously, courts granted injunctions against anti-BDS bills in other states, reasoning that the bills unconstitutionally singled out criticism of Israel and that BDS participation was “inherently expressive.” When challenged, anti-BDS laws were struck down or amended. Rejecting more spurious legal analogies, previous courts considering the issue drew on NAACP v. Claiborne, a Supreme Court case affirming that boycotts are protected by the First Amendment and that states have no right to prohibit peaceful political activity. The Eighth Circuit remains a clear outlier on this matter.

Against the body of jurisprudence and consensus among First Amendment experts, the Eighth Circuit concluded in the Arkansas case that only the speech surrounding a boycott – picketing, speechmaking, and protest marches – is constitutionally protected. Absurdly, the Eighth Circuit ruled that the boycott itself is not. Citing a case involving a ban on military recruiters at college campuses, they argued that a boycott cannot be protected by the First Amendment if an explanation is required to understand the purpose of the boycott. The court uncritically accepted the state legislature’s pretext for singling out the BDS movement, writing “[the legislature] repeatedly expressed concern for the commercial viability of companies that refuse to do business with Israel and the effect this could have on the state’s finances.” Never mind that any expressive boycott could be foreclosed by this line of reasoning, effectively giving states a viewpoint-discriminatory veto over any contractor putting their money where their mouth is.


The impact

The implications of this case are far-reaching. Already, the conservative legal group ALEC has put out model legislation entitled the Energy Discrimination Elimination Act, which would create a blacklist of companies engaged in fossil fuel boycotts and render those companies ineligible for government contracts. In Texas, a version of this energy discrimination bill yanked pension funds out of BlackRock investing, which has been altering its financial portfolios to partially divest from fossil fuels.

The diversity of groups that filed amicus briefs urging the Supreme Court to take up the case attests to the case’s importance for groups across the political spectrum. The free speech advocacy group FIRE filed an amicus brief recognizing the First Amendment issue at stake, pointing out that free speech has little meaning if the government can wield its economic power to put a thumb on the scale of one side of the debate. A collective of Jewish organizations filed another amicus brief pointing to the Jewish boycott tradition, writing that under the Eight Circuit’s view, “the mass boycotts of Nazi Germany were matters of legislative grace rather than constitutional right” and quoting pro-Israel rabbis who nonetheless affirm individual Jews’ right to political expression. Boycotts have always been a First Amendment-protected tactic used by a diversity of groups, and the Supreme Court’s refusal to hear the case reverberates across movements.

By denying writ of certiorari, the Supreme Court has declined to take a stand for the First Amendment, instead opting to empower the 26 states with anti-BDS laws on the books to continue unconstitutional viewpoint discrimination. Over the past decade, Defending Rights & Dissent has opposed these bills wherever they crop up, mobilizing the grassroots in defense of the First Amendment right to political expression. DRAD has long emphasized the fact that anti-BDS bills effectively impose a financial penalty upon speech the government dislikes. Boycotts have always been a part of the American political voice, and expression should not be curtailed by ideological loyalty oaths.