Act 710 of 2017
aka: Anti-BDS Law
Act 710 of 2017 prohibits the state from contracting with, or investing in, companies that “boycott Israel.” The law was passed at a time when the BDS movement (boycott, divestment, sanctions) was gaining increasing success internationally, sparking a backlash, especially in the United States, a country with significant military and economic ties to the nation of Israel, as well as a large population of evangelical Christians who believe that American support for Israel is necessary for advancing the Second Coming of Christ.
The BDS movement formally originated in 2005 as part of the Palestinian-led resistance to Israel’s occupation of Palestinian territory. The movement was inspired by similar actions taken internationally against the apartheid regime of South Africa and sought to inspire people, companies, and states to distance themselves from entities participating in the illegal (according to international law) Israeli occupation of Palestinian land. The stated goal was to boycott companies and other agencies doing business in the Occupied Territories, encourage investors to divest themselves of stock or other investments in such countries, and encourage nations to sanction organizations participating in or facilitating the occupation.
In 2015, Tennessee became the first state to pass an anti-BDS law. By 2019, some twenty-seven states had passed laws that, in some measure, prohibited boycotts relating to the state of Israel. Many of these states essentially copied the bills from each other; this is referred to as filing “model bills” or “cookie-cutter legislation.” Judges in Texas, Arizona, and Kansas ruled against these laws. In Kansas, a Mennonite school teacher was fired from a teacher-training program over her refusal to sign a pledge not to boycott Israel, and when a federal judge struck down the law, the state legislature rewrote it so that it affected not individuals but only businesses of a certain size that sought to contract with the state. On July 25, 2019, the U.S. House of Representatives passed a resolution condemning the BDS movement. However, the U.S. Supreme Court, in NAACP v. Claiborne Hardware, had previously ruled that boycotts are exercises of freedom of speech protected by the First Amendment, saying that boycotts were a significant tool of the civil rights movement of the twentieth century.
Senator Bart Hester introduced the anti-BDS bill, Senate Bill 513, into the Arkansas General Assembly on February 28, 2017. The bill passed on March 13 with twenty-nine legislators voting yes, two present, and three not voting. In the House, the bill passed on March 22 with sixty-nine yes votes and three no votes, with twenty-eight not voting. Governor Asa Hutchinson signed the bill on March 27.
Among some supporters of the BDS movement, the goal of boycotting those companies or institutions directly or indirectly involved in the occupation of Palestinian lands expanded to include Israeli businesses, institutions, and individuals as a whole, regardless of any ties they might have to occupational forces. Some critics have thus accused the BDS movement of anti-Semitism. However, Act 710 also conflates Israel with the territories it occupies, defining a boycott of Israel as “engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner.”
Under Act 710, the State of Arkansas or any of its agencies (including colleges and universities) cannot contract for any good or service valued at more than $1,000 with any company that is regarded as engaging in a boycott of Israel or that has investments in companies that boycott Israel. Individuals and companies seeking to enter into a contract must sign a form certifying that they do not boycott Israel and that they will refrain from doing so for the duration of the contract.
In December 2018, the American Civil Liberties Union (ACLU), on behalf of the Arkansas Times, filed suit against the State of Arkansas after the Times was approached by the University of Arkansas-Pulaski Technical College to sign an anti-boycott form in order to secure future advertising contracts. The Times had never participated in such a boycott, but company leaders regarded this new requirement as an unconstitutional infringement upon freedom of speech. Judge Brian Miller dismissed the suit on January 23, 2019, asserting that the Times had no standing to sue. Later in the year, the ACLU filed a brief with the Eighth Circuit Court of Appeals to reverse this ruling. On February 12, 2021, the Eighth Circuit ruled in favor of the Times, asserting that the act in question “seeks to restrict government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized as entitled to protection under Supreme Court precedent,” and sent the case back to district court.” The court, however, did not enjoin enforcement of the law, and the state continued to require individuals and businesses to sign the pledge. On June 10, 2021, the Eighth Circuit granted a petition by the state and ordered a rehearing by the full court, vacating the earlier ruling.
The experience of the Arkansas Times, and other businesses across the country, in dealing with state anti-BDS laws was the subject of the 2021 documentary Boycott. In the film, Sen. Hester gives his reasons for introducing the original bill as follows: “There is going to be certain things that happen in Israel before Christ returns. There will be famines and disease and war. And the Jewish people are going to go back to their homeland. At that point Jesus Christ will come back to the earth. Anybody, Jewish or not Jewish, that doesn’t accept Christ, in my opinion, will end up going to hell.” In November, Arkansas Times publisher Alan Leveritt wrote an editorial for the New York Times in which he stated: “Let’s be clear, states are trading their citizens’ First Amendment rights for what looks like unconditional support for a foreign government.” Leveritt appeared the following month on CNN to discuss the lawsuit.
On June 22, 2022, the Eighth Circuit ruled against the Times, stating in part that the law did not prohibit anyone “from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.” In her dissent, Justice Jane Kelly wrote, “Supporting or promoting boycotts of Israel is constitutionally protected under Claiborne, yet the Act requires government contractors to abstain from such constitutionally protected activity.” However, on February 21, 2023, it was announced that the U.S. Supreme Court would not hear the appeal to the Eighth Circuit’s ruling, allowing it to stand.
The template for anti-BDS bills has been adopted in some states to advance legislation to limit the employment opportunities of people who support environmental sustainability and/or gun safety. For example, in 2021, the state of Texas adopted a law that would forbid state entities from making any contract with a company that “boycotts” the fossil fuel industry (such as an investment fund that refuses to invest money in the industry), as well as a law that prohibits contracts with companies that “discriminate against the firearm and ammunition industries.” In October 2022, when the ACLU formally petitioned the U.S. Supreme Court to take up the case brought by the Times, chief litigator Brian Hauss laid out as the main reason for overturning the law this development: “If the supreme court doesn’t weigh in, or if it says that states can do this, every state is going to have a raft of anti boycott-laws that are basically designed to protect whatever causes or interests are favored by the legislators in that state.” Indeed, in January 2023, this began occurring in Arkansas when state Senator Ricky Hill of Cabot (Lonoke County) filed two bills, SB41 and SB62, along such lines. The first would allow the state treasurer to divest stocks or securities depending upon the policies financial service providers have toward fossil fuel and firearms industries, while the second would prohibit public entities from contracting with companies that refuse to invest or otherwise have business relations with the fossil fuel or firearms industries. Rep. Jeff Wardlaw of Hermitage (Bradley County) filed HB1307, a bill similar to SB41 but one that would exempt “indirect holdings” to minimize the impact upon state government retirement systems. This bill passed the House on February 16, 2023, and passed the Senate on March 13, 2023.
For additional information:
Act 710 of 2017. Arkansas General Assembly. http://www.arkleg.state.ar.us/assembly/2017/2017R/Acts/Act710.pdf (accessed December 5, 2019).
Adame, Jaime. “9 States Support Anti-Boycott Law.” Arkansas Democrat-Gazette, June 13, 2019, p. 5B. Online at https://www.arkansasonline.com/news/2019/jun/13/9-states-support-anti-boycott-law-20190/ (accessed June 22, 2022).
———. “‘Boycott’ Key Point as Judges View Law.” Arkansas Democrat-Gazette, September 22, 2021, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2021/sep/22/israel-anti-boycott-law-focus-of-appeals-court/ (accessed June 22, 2022).
———. “Filing Supports Law on Israel Boycotts.” Arkansas Democrat-Gazette, June 2, 2019, pp. 1B, 7B.
———. “Groups Back Test of Boycott Law.” Arkansas Democrat-Gazette, April 16, 2019, p. 5B. Online at https://www.arkansasonline.com/news/2019/apr/16/groups-back-test-of-boycott-law-2019041/ (accessed June 22, 2022).
———. “State Gets Rehearing on Ban of Boycotts.” Arkansas Democrat-Gazette, June 11, 2021, pp. 1B, 5B. Online at https://www.arkansasonline.com/news/2021/jun/11/state-gets-rehearing-on-ban-of-boycotts/ (accessed June 22, 2022).
———. “Times Claims Law’s Defense Forgets History.” Arkansas Democrat-Gazette, July 9, 2019, pp. 1B, 6B.
———. “U.S. Judges Decide against Ark. Times.” Arkansas Democrat-Gazette, June 23, 2022, pp. 1A, 2A. Online at https://www.arkansasonline.com/news/2022/jun/23/us-judges-decide-against-ark-times/ (accessed June 23, 2022).
Anti-Boycott Legislation Tracker. Just Vision. https://justvision.org/boycott/legislation-tracker (accessed June 22, 2022).
Bowden, Bill. “Decision Disputes No-Boycott State Edict.” Arkansas Democrat-Gazette, February 13, 2021, pp. 1B, 3B.
Brantley, Max. “Growing Free Speech Concern on Israel Boycott Law.” Arkansas Blog, August 30, 2018. https://www.arktimes.com/ArkansasBlog/archives/2018/08/30/growing-free-speech-concern-on-israel-boycott-law (accessed December 5, 2019).
Goldfeder, Mark. “Why Arkansas Act 710 Was Upheld, and Will Be Again.” Arkansas Law Review 74.4 (2022): 607–640. Online at https://scholarworks.uark.edu/alr/vol74/iss4/3/ (accessed October 21, 2022).
Langhorne, Will. “Review Sough of Ruling on Israel Law.” Arkansas Democrat-Gazette, October 21, 2022, pp. 1B, 2B. Online at https://www.arkansasonline.com/news/2022/oct/21/free-speech-advocates-ask-us-supreme-court-to/ (accessed October 21, 2022).
Leveritt, Alan. “We’re a Small Arkansas Newspaper. Why Is the State Making Us Sign a Pledge About Israel?” New York Times, November 22, 2021. https://www.nytimes.com/2021/11/22/opinion/israel-arkansas-bds-pledge.html (accessed November 23, 2021).
McGreal, Chris. “ACLU Asks Supreme Court to Overturn Arkansas’ Anti-Boycott Law against Israel.” The Guardian, October 20, 2022. https://www.theguardian.com/us-news/2022/oct/20/aclu-arkansas-anti-boycott-law-israel (accessed October 20, 2022).
Satter, Linda. “Halt Boycott-Law Suit, State Urges Court.” Arkansas Democrat-Gazette, January 4, 2019, pp. 1B, 8B. Online at https://www.arkansasonline.com/news/2019/jan/04/halt-boycott-law-suit-state-urges-u-s-c/ (accessed June 22, 2022).
———. “Judge to Issue Order on Israel-Pledge Law.” Arkansas Democrat-Gazette, January 5, 2019, pp. 1B, 8B. Online at https://www.arkansasonline.com/news/2019/jan/05/judge-to-issue-order-on-israel-pledge-l-1/ (accessed June 22, 2022).
———. “Suit over Israel Boycott Law Tossed.” Arkansas Democrat-Gazette, January 24, 2019, pp. 1B, 5B.
Thomas, Alex. “Justices Say No to Boycott Challenge.” Arkansas Democrat-Gazette, February 22, 2023, pp. 1B, 8B. Online at https://www.arkansasonline.com/news/2023/feb/22/us-supreme-court-wont-hear-case-regarding/ (accessed February 22, 2023).
Thrall, Nathan. “BDS: How a Controversial Non-Violent Movement Has Transformed the Israel-Palestine Debate.” The Guardian, August 14, 2018. https://www.theguardian.com/news/2018/aug/14/bds-boycott-divestment-sanctions-movement-transformed-israeli-palestinian-debate (accessed December 5, 2019).
Wickline, Michael R. “Retirement Chiefs Fear Loss under Bill.” Arkansas Democrat-Gazette, March 7, 2023, pp. 1B, 2B. Online at https://www.arkansasonline.com/news/2023/mar/07/state-employees-retirement-system-estimates/ (accessed March 7, 2023).
———. “Senate OKs Bill Barring Boycotts by Contractors.” Arkansas Democrat-Gazette, March 10, 2023, p. 3B. Online at https://www.arkansasonline.com/news/2023/mar/10/senate-oks-bill-barring-boycotts-by-contractors/ (accessed March 10, 2023).
———. “Senate OKs Divestment Measure.” Arkansas Democrat-Gazette, March 14, 2023, pp. 1B, 2B. Online at https://www.arkansasonline.com/news/2023/mar/14/senate-oks-divestment-measure/ (accessed March 14, 2023).
Wickline, Michael R., and Neal Earley. “Governor Gets Divestiture Bill.” Arkansas Democrat-Gazette, March 28, 2023, pp. 1B, 6B. Online at https://www.arkansasonline.com/news/2023/mar/28/house-of-representatives-sends-esg-bill-to-sanders/ (accessed March 28, 2023).
Staff of the CALS Encyclopedia of Arkansas
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