Anti-BDS Laws Could Upend the Right to Engage in Boycott

When a group of filmmakers visited the Arkansas Capitol last year to interview state Sen. Bart Hester, the Republican majority leader and primary sponsor of a bill requiring state contractors to pledge not to boycott Israel, they unexpectedly ran into Sen. Greg Leding, a Democrat. Leding, like nearly all of his colleagues in the state Senate, had voted in favor of the bill. Caught visibly off guard by the cameras, he tells the filmmakers that when some of his constituents criticized his vote, he “had completely forgotten about it, wasn’t even sure how I had voted. … We vote a couple thousand times during a session, and it was one of those [bills] that for whatever reason just wasn’t on my radar.”

“The Palestinian movement is not here educating the other side of the issue,” Hester quips in gleefully. “No one heard the other side of the argument. I doubt there was any question. It just flew through.”

The exchange is captured in one of the most poignant scenes of “Boycott,” a new film released this month documenting U.S. legislative efforts to repress criticism of the Israeli occupation of Palestine. Leding tells the filmmakers that he “regret[s] not knowing more about the issue” when he voted for the bill and that he might have voted against if he had. “I don’t know that, unfortunately, many Arkansans even know that it’s the law.”

Arkansas is one of 33 states that have passed legislation punishing boycotts of Israel by U.S. state legislatures since 2015. The bills came in response to growing worldwide support for a Palestinian-led, peaceful movement to oppose the occupation through boycott, divestment, and sanctions against Israel, known as BDS. The film, produced by the nonprofit Just Vision, details the insidiousness of legislation passed with virtually no public scrutiny or pushback and the fragility of the constitutional protections meant to safeguard Americans’ right to hold and express political opinions contrary to those of their government.

“That moment in the film is pretty emblematic of how these bills are passed,” Julia Bacha, the film’s director, told The Intercept, referring to the unplanned encounter with Leding. “It’s true, they have to vote on a lot of bills, but if the bill is presented as pro-Israel, Democrats and Republicans vote in favor of it, and the vast majority of them, I take him for his word, didn’t even bother to read it fully and understand the constitutionality of it.”

The film tells the stories of people in three states who refused to sign an anti-BDS pledge as a condition of receiving government funds: Alan Leveritt, the founder and publisher of the Arkansas Times, a small, free publication that relies largely on advertisements from state-affiliated agencies; Mikkel Jordahl, an Arizona attorney who had a state contract to provide legal services for incarcerated people; and Bahia Amawi, a Palestinian American child speech pathologist from Texas whose battle against the state’s anti-BDS law was first reported by The Intercept in 2018.

“Boycott” follows Jordahl and Amawi as they successfully challenge their states’ laws. The protagonists ultimately won their contracts back and forced legislators to amend the bills, though Arizona and Texas narrowed the scope of the laws rather than scrapping them.

Leveritt, a self-described former conservative, refused to sign the pledge on principle, even though his paper had no plans to get involved with the BDS movement. He sued Arkansas on First Amendment grounds in 2018 after one of his state advertising clients insisted that he sign the pledge.

His case has yet to be resolved, with a panel of judges at the 8th U.S. Court of Appeals currently reviewing an earlier ruling in his favor. The case is likely to end up before the U.S. Supreme Court.

“We’re not boycotting anyone, we’re just saying, ‘You have no right to tell us what our speech should be, and if we want to boycott, we can, it’s none of your business,’” Leveritt says in the film. “I just object to government saying, ‘We got a big old wad of money over here, and we’ll give it to you, we’ll advertise with you, but here are some conditions that you need to meet first, such as, here’s the political position you need to take’ — regarding foreign policy for God’s sake, and we’re in Arkansas.”

In a recent op-ed, Leveritt doubled down: “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?”

Bahia_Press-Conference_Court_Credit-Jonah-Candelario_2 — Photo: Jonah Candelario

An American Tradition

“Boycott” traces the origin of the anti-BDS bills to the American Legislative Exchange Council, or ALEC, a group that spearheads many conservative state legislative efforts. The documentary also details how the Israeli government bypassed U.S. laws against foreign interference by setting up a nongovernmental body through which it funneled millions of dollars to U.S. groups, which in turn lobbied in favor of the bills.

One of the primary recipients was Christians United for Israel, an evangelical group that has become one of the staunchest advocates for pro-Israel legislation in the U.S. The film details the odd partnership of ideology and convenience between the Israeli government and U.S. evangelical Christians who believe that Israel’s biblical borders must be restored in order for Jesus Christ to return to Earth. At that point, Hester, the state senator, tells the filmmakers that “anybody, Jewish or not Jewish, that doesn’t accept Christ, in my opinion, will end up going to hell.”

Palestine Legal, a group that protects the rights of Palestinian freedom supporters in the U.S., has noted that anti-BDS measures have proliferated in recent years and have evolved in response to legal challenges, for instance with scaled-back language that applies only to larger businesses rather than individual contractors. And while some provisions — like one in Texas tying access to government disaster relief funds to a pledge not to boycott Israel — were scrapped following widespread condemnation, other measures have impacted state contracts, state investments such as pension funds, and universities’ access to federal funding. On the federal level, Congress has tried and failed to pass anti-BDS legislation, including one bill that would have criminalized boycotts of Israel.

“Boycott,” which weaves in archival footage of a long history of political boycotts in this country, argues that the exercise of one’s political beliefs by withholding money is a tradition that is integral to the American spirit.

“I don’t blame the Israeli government for doing everything they can in this country to protect themselves,” Leveritt told The Intercept in a recent interview. “I expect my politicians and my representatives to protect the American way, and to protect our rights as Americans, and to push back and not to let that happen. I look to the Constitution and I look to my representatives for protection, and that’s what we’re not getting.”

“I look to the Constitution and I look to my representatives for protection, and that’s what we’re not getting.”

As a college student, Jordahl, the Arizona attorney, had participated in protests calling for divestment from apartheid South Africa in the 1980s and once faced administrative proceedings for disrupting a meeting by the trustees of Oberlin College, his alma mater. “It was our little act of civil disobedience, because they wouldn’t divest from corporations doing business in South Africa,” said Jordahl, who now boycotts companies that benefit from the Israeli occupation, like Hewlett Packard. “It’s a very similar thing, the feeling that, wait a minute, we shouldn’t be profiting from apartheid. It’s pretty simple.”

Amawi, who is Palestinian, told The Intercept that she could not bring herself to sign the anti-boycott language tucked onto her contract with the Austin public school district while her family lives under Israeli occupation in the West Bank. The only child speech pathologist in the district who is an Arabic speaker, she lost her job as result. Amawi stressed that her legal battle against the state was one to protect American values. “It was really offensive; I just couldn’t let this happen,” she said, referring to the pledge. “I have four children who are Palestinian American, and I want to make sure they don’t live in a society where they are being vilified because they are Palestinian. And I want to make sure that they can exercise their rights as Americans.”

The U.S. Supreme Court ruled that boycotts are protected under the First Amendment 40 years ago in a unanimous decision involving a boycott of white-owned businesses called by the NAACP in Claiborne County, Mississippi. That decision has long been understood to protect the right to participate in a boycott. But a judge in Arkansas ruled otherwise, so Leveritt and the American Civil Liberties Union appealed and won before a panel of three judges at the 8th Circuit. Arkansas Attorney General Leslie Rutledge successfully petitioned for the court to hear the case again.

“You may not care about Israel-Palestine. But you should care if it’s being used as a hook to legislate in your state and at the federal level against free speech.”

“Until a few years ago, when these anti-BDS laws started popping up around the country, everybody understood Claiborne to protect the right to participate in boycotts,” Brian Hauss, an attorney with the ACLU who litigated two of the three cases described in the film, told The Intercept. Instead, he said, the government now appears to be arguing that “essentially, Claiborne only protects the right to call for a boycott but not the right to participate.”

Advocates are now watching closely as the 8th Circuit panel reviews that decision. “It would be shocking for a court to say that there is no right to participate in a political boycott, given the long history of boycotts in this country all the way back to the Boston Tea Party, the Montgomery Bus Boycott, boycott of apartheid South Africa,” said Hauss. “This is a rich tradition.”

Anti-BDS legislation is not only unconstitutional, critics argue, but it also sets a dangerous precedent. Texas legislators have used the state’s anti-BDS law as a template to pass bills that keep businesses that boycott fossil fuels and firearms from securing state contracts. At least four other states have introduced similar legislation, the film notes.

One scene in “Boycott” imagines the possibilities, showing the text of a bill changing from punishing support for BDS to other positions like “supporting Black Lives Matter” or “supporting Greenpeace.”

“You may not care about Israel-Palestine,” Lara Friedman, president of the Foundation for Middle East Peace, says in the film. “But you should care if it’s being used as a hook to legislate in your state and at the federal level against free speech.”