A publisher involved in a legal battle with Arkansas over a law banning the boycott of Israel

March 2, 2019, 22:21 GMT

By Ben Kesslen

When letters first appeared on Alan Leveritt's desk saying that the Arkansas Times was bound to sign a pledge not to boycott Israel to continue receiving contracts with the state, he ignored them.

"Honestly, I did not know that there was a boycott of Israel when I started receiving these notices," Leveritt told NBC News.

As a publisher of the Arkansas Times, a monthly magazine based in Little Rock, he relies on the advertising revenues of state entities to keep his business afloat.

"Publishing a newspaper is not a lucrative business at the moment," he said, adding that he hoped the letters "would disappear".

But ultimately, a purchasing manager at the Pulaski Technical College of Arkansas University, whom Leveritt pointed out was "in accordance with the law," insisted that he sign the pledge to retain advertising revenues.

The purchasing manager followed Law 710, a 2017 law passed in the Arkansas Legislature "to prohibit public entities from contracting and investing in companies that boycott Israel".

This means that if a company wanted to obtain a contract worth more than $ 1,000, the public entity that granted it had to certify that it was not participating in the boycott of Israel. If a company does not sign the pledge, the Arkansas law allows it to continue to receive a contract if it offers its services with a discount of at least 20%.

Law 710 was passed to allow the Arkansas legislature to affirm its support for Israel and to respond to the BDS movement, a growing pro-Palestinian effort that calls for boycott, divestment and sanctions. against Israel to guarantee the rights of Palestinians.

Although Leveritt does not hesitate to say that the Arkansas Times is leaning "to the left of the center", neither he nor the publication have ever supported a boycott of Israel or the broader BDS movement. .

"We do not have a dog in this hunt," said Leveritt. "We are much more interested in the expansion of Medicaid than by Jerusalem."

But now, a geopolitical problem in which he felt he was not interested was his small, already precarious business.

Leveritt thought of signing the promise. "Having something like this thrown at you is enough to capsize the boat," he said. In the end, Leveritt said he could not get through, though.

He thought that forcing him to sign a promise like the one imposed by Law 710 violated his constitutional rights and journalistic ethics.

The Times lost about $ 13,000 to the Pulaski Tech account in three months and Leveritt joined the American Civil Liberties Union, which sued the board of the University of Arkansas System on his behalf.

A problem beyond Arkansas

Arkansas is one of 25 states that have passed legislation to restrict BDS movement and about 15 others have seen anti-BDS legislation introduced in their state chambers.

Republican Senator Bart Hester introduced Law 710 in the Arkansas Senate as a co-sponsor. "It's a very small step, but that's what we could do as a state of Arkansas," Hester told NBC News. "When a state does it, it's not a lot, but when 35, 40 or 50 states do it, it starts sending a message."

Earlier this month, anti-BDS legislation became national when the US Senate passed the Combating BDS law, which encourages states to enact laws such as Law 710. This law was passed with the support of groups such as the Israeli Public Affairs Commission (AIPAC) and Christians. United for Israel. Other national laws, such as the Israeli anti-boycott law, also exist.

The ACLU, which does not take a stand on the boycott of Israel or any other country but maintains that the boycott is a "protected expression," successfully sued Arizona and Kansas for their respective anti-corruption laws. BDS. In Arkansas, they were short.

By filing a preliminary injunction to block the law as the case goes on, the ACLU argued that Law 710 violated the First Amendment rights of the people of Arkansas because the boycott politics is a protected expression.

The defendants, the system from the University of Arkansas, referred the case to Arkansas Attorney General Leslie Rutledge, whose office requested the Arkansas case filing. Times. (A representative from the university said that he was not commenting on the pending litigation).

In January, a federal district judge dismissed the ACLU's request for an injunction and dismissed the case outright, saying that "to engage in a boycott of Israel." , as defined by Law 710, is neither a speech nor a fundamentally expressive behavior, it is not protected by the First Amendment. "On February 21, the ACLU appealed the case before the court of the eighth circuit.

Brian Hauss, the ACLU's senior lawyer in the case, said: "You can not condition government contracts to the loss of First Amendment rights and let people choose between their livelihood and their First Amendment rights. "

A spokesman for Rutledge's office, however, said: "Attorney General Rutledge is confident that the eighth circuit will confirm the well-reasoned decision of the High Court which rejected the Arkansas Times' meritorious suit."

IfNotNow, a progressive Jewish group that does not take a stand on the BDS movement, opposes state bills such as Law 710, calling them a "thinly veiled attempt"[s] to use the power of the state to silence political dissent. "

"Criminalizing a peaceful protest is morally unjustifiable, no matter what you think about the BDS," the group said.

What counts as protected speech?

While the BDS debate is largely about whether the movement discriminates against the Jewish people – as its detractors and supporters, many of whom are Jewish, deny vehemently – the crucial point of the trial of the ACLU is a different problem: constitutionally protected right to political boycott?

Alyza Lewin, President and General Counsel of the Louis D. Brandeis Center for Human Rights, said she did not believe the BDS was constitutionally protected, and the Brandeis Center argued that laws such as Law 710 did not violate freedom of expression.

"There is no absolute right to a political boycott," Lewin said. She believes that the ACLU "associates speech with conduct" and falsely argues that the government "must subsidize discriminatory conduct".

Ramya Krishnan, a lawyer at the Knight First Amendment Institute of Columbia University, does not agree.

"The Supreme Court ruled almost forty years ago that the political consumer boycott is a form of protected freedom of expression," said Krishnan.

Krishnan quoted NAACP vs. Claiborne Hardware, the historic civil rights case of 1982 that stated that "while states have the power to regulate economic activity," the First Amendment protects those who use the boycott to "bring about political, social, and economic change." ".

Hauss said the people involved in the boycott of Israel were doing so clearly for political reasons, noting that none of the ACLU's clients who opposed anti-BDS legislation had ever benefited from their boycott .

Lewin stated that laws such as Law 710 have "no impact on [Leveritt’s] speech at all. "

"The only thing that would limit are the buying decisions," she said. "If the behavior requires an explanation, the explanation is the speech, but the behavior itself, the purchasing power, is not the speech."

This is why Lewin thinks that "these laws are really anti-discrimination laws".

Hauss does not buy this claim.

Because anti-BDS bills focus solely on Israel, Hauss said that they "are not really interested in preventing discrimination".

"They are interested in preventing some type of expression that the government does not like," Hauss said, "that's why they're called anti-BDS laws and no laws on discrimination based on nationality. "

Practical implications for Arkansas Times

In the midst of the legal debates and legal battles of last year, the Arkansas Times experienced the worst year of its history after deciding not to sign that pledge, said Leveritt. Losing contracts like Pulaski Tech, it's "real money for us," he added.

The business continues, he is worried about the future of his business. "We have 35 families who depend on this newspaper for a living," said Leveritt.

Yet he remains firm in his decision not to sign the pledge.

"You know, we were not trying to fight," said Leveritt. "We have sometimes been on the wrong side of the breakeven point. We did not want any problems.

But the moment you sign a pledge like the one the state agencies demanded to sign, Leveritt said, "You're no longer a journalist. You are in public relations. "