At The Arkansas Times, a publication I founded 47 years ago, our pages focus on small-scale local issues, like protecting Medicaid expansion from the predations of our state legislature and other elements of Arkansas politics, history and culture. So I was surprised when in 2018 I received an ultimatum from the University of Arkansas’s Pulaski Technical College, a longtime advertiser: To continue receiving its ad dollars, we would have to certify in writing that our company was not engaged in a boycott of Israel. It was puzzling. Our paper focuses on the virtues of Sims Bar-B-Que down on Broadway — why would we be required to sign a pledge regarding a country in the Middle East?
I understood the context of that email. In 2017, Arkansas pledged to enforce support for Israel by mandating that public agencies not do business with contractors unless those contractors affirm that they do not boycott Israel. The idea behind the bill goes back 16 years. In 2005, Palestinian civil society launched a campaign calling for “boycott, divestment and sanctions against Israel until it complies with international law and universal principles of human rights.” Around the world, Boycott, Divestment and Sanctions, or B.D.S., as it became known, gained momentum. In response, Israel and lobbyists have used multiple strategies to quash the movement. In the United States, one such strategy took the form of anti-B.D.S. bills. Currently, more than 30 states have provisions on the books similar to Arkansas’s.
It soon became clear that The Arkansas Times had to answer our advertiser. Though boycotting Israel could not have been further from our minds and though state funding is a significant source of our income, our answer was no. We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And as journalists, we would be unworthy of the protections granted us under the First Amendment.
And so, instead of signing, we sued to overturn the law, represented by the American Civil Liberties Union, on the grounds that it violates the First and 14th Amendments. We are still fighting it.
The Arkansas legislature is dominated by conservative evangelicals, such as the former Senate majority leader, Bart Hester. He is featured in the new documentary film “Boycott,” directed by Julia Bacha and produced by the group Just Vision. “Boycott” follows three plaintiffs, including me, challenging their states’ anti-boycott laws. In the film, Senator Hester explains that his religious belief motivates everything he does as a government official, including writing Arkansas’s anti-boycott law. He also explains his eschatological beliefs: “There is going to be certain things that happen in Israel before Christ returns. There will be famines and disease and war. And the Jewish people are going to go back to their homeland. At that point Jesus Christ will come back to the earth.” He added, “Anybody, Jewish or not Jewish, that doesn’t accept Christ, in my opinion, will end up going to hell.” Senator Hester and his coreligionists may see the anti-boycott law as a way to support Israel, whose return to its biblical borders, according to their reading of scripture, is one of the precursors to the Second Coming and Armageddon.
In other words, Senator Hester and other supporters of the law entwine religion and public life in a manner that we believe intrudes on our First Amendment rights.
These types of laws are not restricted to states in which fundamentalist Christians hold sway. In 2016, California passed a law requiring large contractors working with a state agency to certify that they will not discriminate against Israel, and Andrew Cuomo, as governor of New York, signed an executive order that compels state entities to divest money and assets from a list of organizations regarded by the state as participating in the boycott. Senator Chuck Schumer of New York proposed national anti-boycott legislation.
Let’s be clear, states are trading their citizens’ First Amendment rights for what looks like unconditional support for a foreign government.
When our case reached the Federal District Court in 2019, the state argued that boycotting was not political speech but rather an economic exercise and therefore subject to state regulation. We found that argument absurd. After all, our nation’s founding mythology includes the boycott of tea. Since then, boycotts have repeatedly been used as a tool of political speech and protest, from the Montgomery bus boycott to end segregation to the Delano grape strike protesting exploitation of farmworkers. University students throughout the country engaged in anti-apartheid boycotts of and divestment from South Africa. In 1982, the right to boycott as a method of collective political speech was upheld by a unanimous Supreme Court ruling in N.A.A.C.P. v. Claiborne Hardware Company.
And yet U.S. District Judge Brian Miller ruled against us. We appealed to the Eighth Circuit — and won — before a three-judge panel in February. But on June 10, a rehearing by the full Eighth Circuit was ordered. That hearing occurred on Sept. 21, and a decision is expected very soon. Frankly, we’re concerned it won’t go our way.
If we lose in the Eighth Circuit, our last hope is the Supreme Court. Ours isn’t the only case out there. In 2018 and 2019, federal courts in Texas, Arizona and Kansas ruled against their states’ anti-B.D.S. laws. If the Supreme Court rules against us, the other favorable rulings could be in jeopardy. Also concerning is that these states have since amended their anti-boycott laws, narrowing their scope so they apply only to companies with a large number of contractors and to public contracts that are more than $100,000 but without addressing what we see as the laws’ fundamental unconstitutionality.
Although the Arkansas press has covered the case, there has been little editorial support for or comment on our fight beyond that. The Arkansas Democrat-Gazette signed the pledge — as did Arkansas Business, our business journal. And yet freedom of expression is a sacred American value and foundational to our democratic ideals.
If these anti-boycott laws are allowed to stand, get ready for a slew of copycat legislation. Texas passed two laws that went into effect on Sept. 1 — one prohibiting state agencies from conducting business with contractors that boycott fossil fuels and another preventing agencies from contracting with businesses that boycott firearm companies or trade associations.
What the outcome of The Arkansas Times’s lawsuit will be is unclear. One thing, however, remains crystal clear: These anti-boycott laws, allowing government to use money to punish dissent, will encourage the creation of ever more repressive laws that risk strangling free speech for years to come.
Orthodoxy should be respected, but we cannot allow the politics of a radical minority to alienate millions of Jews worldwide.
.. Last month, a Conservative rabbi was detained for the alleged crime of performing a non-Orthodox wedding ceremony in Israel. In several municipalities, attempts were made to disrupt secular life by closing convenience stores on the Sabbath.
These events are creating the impression that the democratic and egalitarian dimensions of the Jewish democratic state are being tested.
.. For 4,000 years, the Jewish people were seen as the world’s moral compass.
.. The Zionist movement has been unwaveringly democratic from its very start. Writ large upon its flag were liberty, equality and human rights for all. It was also one of the very first national movements to guarantee full equality and voting rights for women.
.. Its Declaration of Independence guarantees “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex,” as well as a guarantee of freedom of religion, conscience, language, education and culture.
..now, when Israel’s government appears to be tarnishing the sacred value of equality, many supporters feel it is turning its back on Jewish heritage, the Zionist ethos and the Israeli spirit
.. In Israel, it will
- heighten the sense of polarization and discord. Abroad,
- Israel may find itself associated with a broken values system and questionable friends.
As a result, future leaders of the West may become hostile or indifferent to the Jewish state.
.. For over 200 years, modern Judaism has aligned itself with enlightenment. The Jews of the new era have fused our national pride and religious affiliation with a dedication to human progress, worldly culture and morality.
.. when members of Israel’s current government unintentionally undermine the covenant between Judaism and enlightenment, they crush the core of contemporary Jewish existence.
.. Already today, the main challenge facing the Jewish diaspora is a deep — and deepening — generational divide. All over the world, and especially in North America, Jewish millennials are raising doubts that their parents and grandparents never raised. The commitment to Israel and Jewish institutions is not unconditional.
.. If present trends persist, young Jews might not acquiesce to an affiliation with a nation that discriminates against
- non-Orthodox Jews,
- non-Jewish minorities and the
- L.G.B.T. community.
They may not
- fight the Boycott, Divestment, Sanctions movement, they may not
- support Israel in Washington and they may not
- provide it with the strategic rear guard that Israel so needs.
.. Let us not forget: A vast majority of the world’s Jews do not identify as Orthodox. They are traditional, secular, Conservative, Reform or completely unaffiliated. Orthodoxy should be respected, but we cannot allow the politics of a radical minority to alienate millions of Jews worldwide.
.. This is not who we are, and this is not who we wish to be. This is not the face we want to show our children, grandchildren and the family of nations.
Altogether, the United Nations and its agencies have condemned Israel so many times that, on one of those proportional maps, tiny Israel would loom over Saudi Arabia, with its beheadings and ban on women driving.
.. Israel has legalized the creation of additional West Bank settlements, built roads that only Jewish Israelis may use and, while recoiling from the word “apartheid,” adopted some of its techniques. For many Palestinians, freedom of movement is impossible.
.. For its part, Israel has drifted to the right, content to let the clock tick.
.. It permits too many Israel supporters to dismiss legitimate criticism as anti-Semitic babbling or to focus on the astounding failings of the Palestinians and not on the rightward drift of Israel in response. A law that stifles dissidence, that bars lovers of Israel from Israel itself, is not only repugnant on the face of it, but also additional evidence that occupation of the West Bank is corroding Israeli democracy. Israel may win the West Bank and lose its soul.