This article originally appeared in Verdict, a magazine published by the National Coalition of Concerned Legal Professionals.
The state of Arkansas, along with more than 30 other states, now requires anyone doing business with their state to first sign a pledge not to boycott Israel. Lawyers, sheetrock hangers, school teachers … everyone must take the pledge. This legislation, prepared by the conservative American Legislative Exchange Council (ALEC) and promoted to largely Republican legislators, is meant to counter the Boycott, Divestment and Sanctions (BDS) movement, an international effort to pressure Israel into moderating its policies toward Palestinians.
Writing in Editor and Publisher, Mike Barnicle, an NBC and MSNBC media commentator, wrote, “What’s the next step? Is the Massachusetts legislature going to demand that any corporate entity in the state operating for the state will be penalized if they don’t advocate for a united Ireland? It’s comical, absolutely comical. Are we going to have 50 state foreign policies?”
Now comes an investigative piece from the Center for Media and Democracy detailing another ALEC anti-boycott initiative unveiled at the closed door December 2021 gathering of ALEC and Republican state legislators. This new initiative, which started rolling out in Republican dominated legislatures in 2022, targets banks, universities, investment firms and other financial entities that are divesting themselves of fossil fuel assets in favor of renewable energy investments.
ALEC, which brought us the fight against critical race theory, among other culture war initiatives, is now describing corporate policies to shift investments from dirty to clean energy as “Critical Energy Theory.” ALEC is funded by Koch Industries, Chevron, Peabody Energy and Duke Energy, among many others. The “model” legislation compels companies to sign a pledge not to boycott fossil fuel investments if they want to continue to do business with the state. This anti-boycott law is patterned after one already passed in Texas, Oklahoma and North Dakota.
In September, a third variant of the anti-boycott law surfaced in Texas, this one targeting banks and other companies that have policies against investing in the firearms industry.
I am a somewhat reluctant authority on anti-boycott legislation, having sued the state of Arkansas in 2018 after the Arkansas Times lost its state advertising for refusing to sign a pledge not to boycott Israel. We are not boycotting anyone, but we refuse to take what in essence is a political position in return for advertising. For us it is a free speech issue and has nothing to do with Israel.
So far, efforts to overturn the anti-boycott laws in federal courts have had encouraging but mixed results.
Initially the Arkansas Times lost in Little Rock federal district court, the judge agreeing with the state that boycotting is “neither speech nor expressive content,” but an economic activity, not political speech and therefore subject to state regulation.
We were stunned. The founding myth of this country centers on the boycott of tea. The 1956-57 Montgomery bus boycott to end segregation, the 1965 Delano boycott to protest the exploitation of farm workers, the anti-apartheid boycott and divestiture movement against the government of South Africa were all obvious examples of boycotting as a form of political speech and activism. In 1905 Chinese merchants boycotted American products to protest the extension of the Chinese Exclusion Act, which banned all Chinese immigration into the U.S. In the 1920s, the Anti-Defamation League successfully boycotted Ford Motors’ products to protest Henry Ford’s virulently anti-semitic newspaper, the Dearborn Independent, which caused Henry Ford to close the paper.
We appealed to the 8th Circuit in St. Louis before a three-judge panel last February and won. The three-judge panel found that the anti-boycott law is not just about commercial transactions, but implicates First Amendment rights. The judges relied on NAACP v. Claiborne Hardware Company. In Claiborne, an unanimous U.S. Supreme Court upheld the right to boycott as a method of collective political speech. The Court determined that the nonviolent elements of NAACP’s boycott of white merchants to promote equality and racial justice were an exercise of the boycotters’ First Amendment rights of speech, assembly and petition and entitled to First Amendment protection.
But in June 2021, a rehearing of our case before the full 8th Circuit was ordered and the rehearing took place last September. The full appeals court reversed the three-judge panel on June 22. We are represented by the ACLU and expect to appeal to the U.S. Supreme Court.
Fortunately, our situation appears to be the exception rather than the rule. A new documentary, “Boycott,” follows three plaintiffs, Bahia Amawi, a Palestinian-American speech therapist in Austin, Texas; Mik Jordahl, a legal counselor in Arizona, and myself. The laws in Texas and Arizona have been struck down, as have laws in Georgia and Kansas. Texas passed a subsequent Israel anti-boycott law targeting only large contracts with the state, assuming, perhaps, a company would not risk losing business worth millions by refusing to sign. That law too was struck down after a Palestinian contractor who has done business with the city of Austin for years challenged it in federal court, refusing to sign.
Judge Andrew Hanen wrote, “The speech contemplated may make some individuals — especially those who identify with Israel — uncomfortable, anxious, or even angry. Nevertheless, speech — even speech that upsets other segments of the population — is protected by the First Amendment unless it escalates into violence and misconduct.”
Unlike the fossil fuels and firearms anti-boycott legislation, the laws meant to protect Israel feature a fascinating alliance between fundamentalist Christian organizations like Christians United for Israel and the state of Israel.
In Boycott, Israeli journalist Itamar Benzaquen traces a complicated, twisting money trail designed by the Israeli government to hide the fact that it was surreptitiously funding American lobbyists and conservative religious organizations to help them pass anti-boycott laws in state legislatures. His investigation revealed that Christians United for Israel had received $1.3 million from the Israeli government through shell organizations meant to hide the state origins of the money. Other pro-Israel groups including Eagle’s Wings, Hasbara Fellowships, America-Israel Friendship League and the Israel Allies Foundation also received significant money the same way.
Arkansas Sen. Bart Hester (R-Cave Springs), a self-described evangelical Christian conservative, was the Republican majority leader in the state Senate when he introduced the Arkansas Israel anti-boycott legislation. According to his reading of Revelations and other books in the Bible, the second coming, Armageddon and the end of world cannot take place until Israel regains its biblical borders and restores its capital to Jerusalem. Thus it is incumbent upon Christians to support a strong, resurgent Israel even though this will ultimately, they believe, result in the destruction of the Jewish people as well as all non-Christians. Here is Sen. Hester speaking on camera in “Boycott”: “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. Anybody, Jewish or not Jewish, that doesn’t accept Christ, in my opinion, will end up going to hell.”
I was raised in the church and I am familiar with this interpretation, even though nowhere in the Bible does it come out and say what Sen. Hester is saying. The idea that we are making policy, even foreign policy based on religious fringe fantasy and prophecy, is disturbing. Sen. Hester and the state of Israel are intertwining religion and the law in a way we believe violates our First Amendment rights.
It is worth nothing that these laws have also passed in states that are not dominated by Christian fundamentalists. As of 2021, 35 U.S. states have adopted laws or executive orders that penalize businesses, organizations, or individuals that engage in or call for boycotts against Israel. In 2016 California began requiring large contractors doing business with the state to pledge not to boycott Israel. In New York, then Gov. Andrew Cuomo issued an executive order requiring the state to divest itself from companies on a list that the state said were boycotting Israel and Sen. Chuck Schumer has introduced anti-boycott legislation.
In remarks aimed at the business community Cuomo said, “If you boycott Israel, New York will boycott you.”
When the anti-boycott laws first began appearing, I did not take them seriously, writing them off as just more culture war grandstanding. I was wrong. The anti-boycott laws are dangerous. They are a template that is being used against multiple targets. First it was BDS, then it was investors fighting climate change, then gun control and now the firearms industry. What’s next? These laws remind me of the recent Texas anti-abortion law that assigns citizens the right to sue abortion providers which, in theory, prevents the state from being sued on constitutional grounds. Now there is legislation afoot in blue California using the same template but target-ing gun manufacturers.
If the Texas approach is upheld by the Supreme Court, then no constitutional right, including the Second Amendment, is secure.
These laws are a malignant virus, constantly mutating and creating new variants that are squarely aimed at the Bill of Rights.