Supreme Court Declines to Hear Challenge to Arkansas’ Anti-Boycott Law

Tue, 21 Feb 2023 00:00:00 -0800

WASHINGTON—The U.S. Supreme Court today declined to hear a challenge to an Arkansas law requiring state contractors to certify that they will not boycott Israel. In November of last year, the Knight First Amendment Institute at Columbia University filed a friend-of-the-court brief on behalf of several prominent First Amendment scholars in support of the Arkansas Times’ cert petition. The brief argues that political boycotts by consumers are protected by the First Amendment.

“It is unfortunate that the Court declined to hear this case,” said Ramya Krishnan, staff attorney at the Knight Institute. “From the Boston Tea Party to the Montgomery bus boycott, Americans have used boycotts to express their shared convictions and demand social and political change. The Eighth Circuit’s decision jeopardizes this rich tradition of protest by misreading one of the Supreme Court’s most celebrated civil rights rulings. The Court should have taken this opportunity to correct this error.”

The Knight Institute’s brief explains that boycotts connected with the Boycott, Divestment, Sanctions (BDS) movement are protected under the U.S. Supreme Court’s landmark ruling in N.A.A.C.P. v. Claiborne Hardware Co., which held that the First Amendment extends to politically motivated boycotts by consumers. “As this Court has recognized, the use of boycotts to influence powerful actors and demand social and political change is ‘deeply embedded in the American political process,’” the brief states.

The Knight Institute filed the brief on behalf of William D. Araiza (Brooklyn Law School); Erwin Chemerinsky (University of California, Berkeley, School of Law); Katherine Franke (Columbia Law School); Seth F. Kreimer (University of Pennsylvania Law School); Genevieve Lakier (University of Chicago Law School); Amanda Shanor (University of Pennsylvania); Geoffrey R. Stone (University of Chicago Law School); Nadine Strossen (New York Law School); and Nelson Tebbe (Cornell Law School).

Arkansas is one of more than 25 states that have enacted laws seeking to suppress boycotts associated with the BDS movement. District courts reviewing challenges to similar laws in Arizona, Georgia, Kansas, and Texas have ruled in favor of the plaintiffs. On June 22, 2022, however, the U.S. Court of Appeals for the Eighth Circuit, sitting en banc, held that Arkansas’ anti-BDS law did not violate the First Amendment and affirmed the district court’s decision.

Read the brief in support of the Arkansas Times’ cert petition here.

Read more about Arkansas Times v. Waldrip here.

In addition to Krishnan, lawyers on the brief include Alex Abdo of the Knight First Amendment Institute.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.