SCOTUS refused to rule about anti-BDS laws and free speech. Here’s why - interview

An appeal challenging anti-BDS law was rejected by the US Supreme Court on Tuesday, leaving the question of whether boycotts constitute free speech for another day.

Arkansas Times v. Waldrip was filed on behalf of the newspaper by the American Civil Liberties Union Foundation in 2018. It centered on a 2017 state law that prevented state bodies from contracting or investing with those engaging in the boycott of Israel – the boycott, divestment and sanctions (BDS) movement. The newspaper had not signed a contract promising not to boycott Israel and believed it had lost ad revenue.

The ACLU contended that at stake was a First Amendment issue: that boycotting was a matter of freedom of speech.

Supreme Court

Josh Halpern, whose working paper was cited heavily in briefs favoring the respondents, explained that the ACLU had filed a petition for certiorari, "a request that the Supreme Court take up and review the case on its merits," after lower courts had dismissed the case.

“When a party appeals to an intermediate appellate court, that court’s jurisdiction is mandatory,” he told The Jerusalem Post. “There’s no option to decline to exercise review authority. But in the Supreme Court, the parties need to convince the court to take up the case on the merits.”

The Supreme Court declined the request to review the case, which was not technically a decision on its merit, Halpern said. Consequently, the lower US Court of Appeals for the Eighth Circuit’s ruling is the only decision that is binding, and it only applies to Arkansas, Nebraska and five other states.

"It is a signal that, at the very least, that the court didn’t feel obligated to intercede, which is a good sign for the states,” Halpern said. “But the Supreme Court grants a small fraction of the cases in which review is sought.”

The Supreme Court usually does not explain the reason why it denies cases, he said.

While the ACLU and other groups claimed that the anti-BDS laws were inconsistent with constitutional tradition, Halpern’s working paper explained why such legislation is consistent with historical record.

“There is a long and storied tradition of boycott regulation in this country that traces back to before the founding [of the US],” Halpern said. “State actors have prohibited boycotts or deterred boycotts whose objectives they detest, and they’ve compelled boycotts whose objectives they support.”

In response to the Supreme Court’s decision, Rep. Rashida Tlaib (D-Michigan) on Wednesday said: “Today, the far-right Supreme Court unfortunately ignored its own precedent and refused to take up the case to overturn Arkansas’s unconstitutional anti-BDS law.”

“Our right to boycott is a protected form of speech and dissent,” she said in a statement

Halpern said the court’s reliance on tradition to resolve constitutional questions was an ongoing controversial topic in academic circles. There is tension between the school of thought championed by many of the current justices, originalism, which maintains that the Constitution’s meaning is fixed, and the school that believes that practice and historical traditions evolve over time to change the meaning.

The debate around anti-BDS laws is unlikely to abate any time soon.

Several states have anti-BDS laws, and several organizations, including Jewish Voice for Peace, J Street, the Council on American Islamic Relations, and Palestine Legal, have come out against them. Others, including the American Jewish Committee, Christians United for Israel, Stand with Us and several states, have come out in support of the laws.

Nikki Haley, who recently announced her presidential bid, signed the first anti-BDS law in 2015, Halpern said.

“I expect that the groups that are intent on challenging these laws are going to continue to attempt to cultivate plaintiffs, and they’re going to continue to attempt to generate litigation around these questions,” he said.