Freedom to Boycott? Arkansas case may kick open a can of worms
The Arkansas state legislature passed a law that requires any entity that wants to do business with the State to sign a pledge to NOT boycott Israel. Even if a business is not boycotting Israel, but does not sign the pledge, it would have to reduce its fees by 20 percent.
It is a reaction to the BDS Movement on the far left to boycott, disinvest and sanction the Jewish state. While it was launched by Muslim legislators such as Omar Ilhan of Minnesota and Rashida Tlaib of Michigan, it was quickly embraced by such radical left political figures as Alexandria Ocasio-Cortez of New York City and Ayanna Pressley of Massachusetts.
The Arkansas legislation had a roller coaster ride through the courts. The original lawsuit brought by the Arkansas Times newspaper was dismissed by the federal District Court. A three-judge panel of appellate judges reversed the dismissal by the lower court. The full federal Appellate Court then reversed the decision of the three-judge panel. The American Civil Liberties Union, that is handling the case for the Times, will take the case to the United States Supreme Court.
Arkansas Attorney General Leslie Rutledge – whose office was defending the legislation — called the court decision “a resounding victory for Arkansas’s anti-discrimination law and reinforces Arkansas’s relationship with our long-time ally, Israel.”
Whatever the Supreme Court decides – if it takes up the case – has potentially huge ramifications far beyond this one case. There are questions of conflicting constitutional rights – including free speech and a broad range of government contracting laws.
As a conservative, I consider boycotts – whether I personally approve or not – as a form of free speech. No law can make us surrender a constitutional right based on pressure or intimidation. What would the courts think if legislation was passed that a state would ONLY do business with companies that boycott Israel?
I am also uncomfortable with the 20 percent reduction in fees if the company is not boycotting Israel but refuses to sign the pledge. This sets up a bias in the government bidding procedures – that are currently regulated by a mountain of legal requirements. The law literally punishes a business that is doing what the State wants it to do – not boycott Israel.
Maybe that concept could be applied to other issues. Make businesses sign a pledge to not overcharge. Or sign a pledge not to donate to civic or political causes – such as pro-abortion or anti-gun groups … the American Conservative Union or Black Lives Matter.
I am a supporter of Israel – and I do not like the BDS Movement. But I have major reservations about this law.
It also brings up an issue that has stuck in my craw for decades. I find it totally wrong to insist that private sector businesses contracted by the government must be union shops. That is especially egregious when you consider that union workers comprise approximately 8 percent of the American workforce.
We see a form of that bias in President Biden’s proposed tax credits to purchasers of electric vehicles. His plan is to provide a $12,000 tax credit for cars made in union factories, but only $7,500 for vehicles purchased in non-union shops. That means a BIG advantage for Ford and General Motors — which sell relatively few electric vehicles – and a lower tax break on Tesla, which has a market share in the 70 percent range.
My ideal outcome is that the Arkansas law gets declared unconstitutional – and that the principle gets extended and ends union favoritism in government contracting. Of course, it would be okay for individuals and other businesses to boycott companies that support the BDS Movement.
So, there ‘tis.