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Federal judge rejects lawsuit challenging Arkansas anti-BDS law

January 24, 2019

A federal judge in Arkansas has thrown out a challenge to the state’s anti-Boycott, Divestment and Sanctions law, rejecting the argument that commercial boycotts qualify as protected speech.

U.S. District Court Judge Brian Miller’s decision came in response to a lawsuit filed by the Arkansas Times newspaper, which had refused to sign a document saying it was not and would not boycott Israel as a condition for an advertising contract with the University of Arkansas - Pulaski Technical College.

The newspaper was not involved in a boycott but objected on First Amendment grounds to complying with the 2017 law, known as Act 710, which prohibits the state from contracting with or investing in companies that boycott Israel.

In his Wednesday ruling, Judge Miller denied the newspaper’s request for a preliminary injunction, saying the Times was unlikely to prevail on the merits because “it has not demonstrated that a boycott of Israel, as defined by Act 710, is protected by the First Amendment.”

“It is highly unlikely that, absent any explanatory speech, an external observer would ever notice that a contractor is engaging in a primary or secondary boycott of Israel,” the judge said in his 17-page opinion.

“Very few people readily know which types of goods are Israeli, and even fewer are able to keep track of which businesses sell to Israel,” he continued. “Still fewer, if any, would be able to point to the fact that the absence of certain goods from a contractor’s office mean that the contractor is engaged in a boycott of Israel.”

The ruling came as a defeat for the BDS movement, backed by the U.S. Campaign for Palestinian Rights, which has argued that anti-BDS laws passed in 26 states violate the First Amendment.

Arkansas Times publisher Alan Leveritt “declined to comment on the ruling until he’s talked further with lawyers about a potential appeal,” reported the newspaper, which was represented by the American Civil Liberties Union of Arkansas.

“We disagree with the district court’s decision, which contradicts two recent federal court decisions and which would radically limit the First Amendment right to boycott,” Holly Dickson, ACLU Arkansas legal director, told the Associated Press.

Roz Rothstein, CEO of the pro-Israel group StandWithUs, cheered the ruling.

“We commend the wisdom of the judge’s decision,” she said in a statement. “As the court recognized, taxpayers need to be protected from being complicit in discrimination, which both undermines state policy and harms its economy.”

BREAKING Arkansas Judge Declares BDS Laws Constitutional A federal court in Arkansas upheld the constitutionality of statewide anti-BDS legislation, striking a blow to constitutional challenges that such laws violate First Amendment right to free speech https://t.co/Nbb6BqVK1s Roz Rothstein (@RozRothstein) January 24, 2019

Last year, U.S. District Court Judge Diane Humetewa blocked Arizona from enforcing its BDS law, saying it infringed on free speech. The attorney general’s office filed an appeal in November.

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