NBC News
By Ben Kesslen
March 3, 2019

When letters first showed up on Alan Leveritt’s desk saying the Arkansas Times was required to sign a pledge not to boycott Israel in order to continue to receive state contracts, he ignored them.

“I was frankly not aware there was a boycott of Israel when I started getting these notices,” Leveritt told NBC News.

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

“Publishing a newspaper is not a lucrative business right now,” he said, adding that he’d hoped the letters would just “go away.”

But eventually, a purchasing manager at the University of Arkansas-Pulaski Technical College, who Leveritt pointed out was “just going by the letter of the law,” insisted that he sign the pledge to retain their ad revenue.

Alan Leveritt, publisher of the Arkansas Times.Alan Leveritt, publisher of the Arkansas Times.Brian Chilson / Arkansas Times
The purchasing manager was following Act 710, a 2017 bill passed in the Arkansas Legislature “to prohibit public entities from contracting with and investing in companies that boycott Israel.”

This means that if a company wanted a state contract over $1,000, the public entity granting the contract had to certify that the company does not participate in a boycott of Israel. If a company doesn’t sign the pledge, Arkansas law allows it to still receive a contract if it offers its services at a reduction of at least 20 percent.

Act 710 was passed as a way for the Arkansas Legislature to affirm its support for Israel and respond to the BDS movement, a growing pro-Palestinian effort which calls for boycotts, divestment and sanctions against Israel to secure Palestinian rights.

While Leveritt isn’t shy in saying the Arkansas Times leans “left of center,” neither he nor the publication has ever supported a boycott of Israel or the broader BDS movement.

“We don’t have a dog in that hunt,” Leveritt said. “We are a lot more interested in Medicaid expansion than we are Jerusalem.”

But now a geopolitical issue he felt like he had no stake in was affecting his already precarious small business.

Leveritt thought about signing the pledge. “To have something like this thrown on top of you is enough to capsize the boat,” he said. Ultimately, Leveritt said he couldn’t go through with it, though.

He believed being forced to sign a pledge like the one Act 710 mandated violated his constitutional rights and his journalistic ethics.

The Times lost around $13,000 on the Pulaski Tech account in three months, and Leveritt teamed up with the American Civil Liberties Union, which sued the University of Arkansas System’s board of trustees on his behalf.

AN ISSUE BEYOND ARKANSAS
Arkansas is one of more than 25 states that have passed legislation meant to curtail the BDS movement, and around 15 more have seen anti-BDS legislation introduced in their state chambers.

Republican State Sen. Bart Hester introduced Act 710 to Arkansas’ Senate as a co-sponsor. “It’s a very, very small step but it’s what we could do as the state of Arkansas,” Hester told NBC News. “When one state does it, it’s not much, but when 35 or 40 or 50 states do it, it starts to send a message.”

Earlier this month, anti-BDS legislation went national when the U.S. Senate passed the Combating BDS Act, which encourages states to enact legislation like Act 710. It passed with support from groups such as the American Israel Public Affairs Committee, or AIPAC, and Christians United For Israel. Other national legislation, like the Israel Anti-Boycott Act, also exists.

The ACLU, which does not take a position on boycotts of Israel or any other nation but maintains boycotts are “protected expression,” successfully sued Arizona and Kansas for their respective anti-BDS laws. In Arkansas, they came up short.

Image: ACLU Israel CertificationCopy of the “Restriction of Boycott of Israel Certification” sent to the Arkansas timesCourtesy ACLU
Filing a preliminary injunction to block the law as the case proceeded, the ACLU argued Act 710 violates the First Amendment rights of the Arkansas people because political boycott is protected expression.

The defendants, the University of Arkansas System, referred the matter to Arkansas Attorney General Leslie Rutledge, whose office filed for the Arkansas Times’ case to be dismissed. (A university representative said it does not comment on pending litigation).

In January, a federal district judge both denied the ACLU’s request for an injunction and dismissed the case outright, saying because “engaging in a boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct, it is not protected by the First Amendment.” On Feb. 21, the ACLU appealed the case to the Eighth Circuit Court.

Brian Hauss, the ACLU’s lead attorney on the case, said, “you can’t condition government contracts on the forfeiture of First Amendment rights and make people choose between their livelihoods and their First Amendments rights.”

A spokesperson for Rutledge’s office, however, said: “Attorney General Rutledge is confident that the Eighth Circuit will affirm the district court’s well-reasoned decision dismissing the Arkansas Times’s meritless lawsuit.”

IfNotNow, a progressive Jewish group that does not take a stance on the BDS movement, opposes state bills like Act 710, calling them “thinly veiled attempt[s] to use state power to silence political dissent.”

“Criminalizing peaceful protest is morally unjustifiable no matter your views on BDS,” the group said.

WHAT COUNTS AS PROTECTED SPEECH?
While much of the debate around BDS centers on whether the movement is discriminatory against Jewish people — something its critics proclaim and its supporters, many of whom are Jewish, vehemently deny — at the crux of the ACLU’s lawsuit is a different issue: Is there a constitutionally protected right to political boycott?

The most recent issue of the Arkansas Times, the publication at the center of the ACLU’s lawsuit.The most recent issue of the Arkansas Times, the publication at the center of the ACLU’s lawsuit.Arkansas Times
Alyza Lewin, president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, said there is a difference between promoting BDS, which she says is protected speech, and engaging in BDS. She said she believes the act of boycotting Israel is not protected by the First Amendment, and the Brandeis Center says legislation like Act 710 does not violate free speech.

“There is no unqualified right to a political boycott,” Lewin said. She believes the ACLU is “conflating speech with conduct” and is falsely arguing the government “must subsidize discriminatory conduct.”

Ramya Krishnan, a staff attorney at the Knight First Amendment Institute of Columbia University, disagrees.

“The Supreme Court held almost four decades ago that politically motivated consumer boycotts are a form of protected free speech,” Krishnan said.

Krishnan was citing NAACP vs. Claiborne Hardware, the landmark 1982 civil rights case that said “while states have broad power to regulate economic activity,” the First Amendment protects those who use boycotts to “bring about political, social, and economic change.”

It’s clear, Hauss said, that people participating in boycotts of Israel are doing it for political reasons, emphasizing that none of the ACLU’s clients who oppose anti-BDS legislation have ever profited from their boycott.

Lewin said statutes like Act 710 don’t “have any impact on [Leveritt’s] speech at all.”

“The only thing that it would restrict is the purchasing decisions,” she said. “If the conduct requires explanation, the explanation is the speech, but the conduct itself, the purchasing power, that’s not speech.”

That’s why Lewin thinks “these statutes are really anti-discrimination laws.”

Hauss doesn’t buy that claim.

Because the anti-BDS bills only focus on Israel, Hauss said they “are not really interested in preventing discrimination.”

“They are interested in preventing a certain kind of expression that the government doesn’t like,” Hauss said, “which is of course why they’re called anti-BDS laws and not nationality discrimination laws.”

PRACTICAL IMPLICATIONS FOR ARKANSAS TIMES
Amid the legal debate and court battles of the past year, the Arkansas Times had the worst year of its history after it decided not to sign the pledge, Leveritt said. Losing contracts like Pulaski Tech is “real money to us,” he added.

As the court case continues, he’s worried about the future of his company. “We have 35 families depending on this newspaper for a living,” Leveritt said.

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

“You know, we weren’t looking for a fight,” Leveritt explained. “We have sometimes been on the wrong side of break even. We didn’t want any trouble.”

But the second you sign a pledge like the one state agencies were demanding he sign, Leveritt said, “You’re not a journalist anymore. You’re in public relations.”

Original Article

By William A. Jacobson
Legal Insurrection
February 5, 2019

In December 2013, the American Studies Association (ASA) became the first, and so far the only, major American academic association to adopt the academic boycott of Israel, part of the Boycott, Divestment and Sanctions (BDS).

As I have documented, the BDS movement is a continuation of the anti-Jewish boycotts of the 1920s and 1930s in the then British Mandate for Palestine, the Arab League boycott of Jewish businesses (even prior to Israel’s independence) and later of Israel, and the gross antisemitic activism at the 2001 Tehran and Durban conferences which launched boycotts in the current form.

The claim that BDS was a response to a 2005 call from Palestinian civil society is a demonstrable lie. That was the cover story to repackage an anti-Jewish boycott in the language of ‘social justice’, as documented in my lecture, The REAL history of the BDS movement:

The fallout from the December 2013 ASA resolution was swift. The ASA action, which is considered a violation of academic freedom by the American Association of University Professors, was condemned by over 250 university presidents and numerous university associations. ASA tried to exclude Israelis from its annual meeting in California, but the threat of legal action caused ASA to back down.

In April 2016, ASA and its leaders were sued in federal court in D.C. by other ASA members, claiming irregularities in the way ASA adopted the boycott.

We have covered the various events in the litigation in prior posts, which you can read for full legal background:

• American Studies Association and its leaders sued over Israel boycott
• Judge: Lawsuit against American Studies Assoc over BDS can move forward
• Lawsuit: BDS movement engineered takeover of American Studies Association
• Court allows expanded lawsuit against American Studies Association and lead faculty activists over Israel Boycott
• In blow to anti-Israel profs, lawsuit against American Studies Association over BDS to stay in federal court

One issue that has troubled the Judge, as expressed in prior opinions, was whether there was federal jurisdiction for the case to be in federal court under what is called “diversity jurisdiction.”

I explained the issue in a prior post regarding the Judge’s decision to allow the case to move forward:

In that [prior] ruling, however, the Court raised an issue the parties had not raised, whether the federal court had “subject matter” jurisdiction. What that means is that federal courts are courts of limited jurisdiction. You need to show either that there is a federal question involved in the case, or that there is diversity jurisdiction (none of the plaintiffs are citizens of the same state as any of the defendants) and there is at least $75,000 in controversy. Absent one of those types of jurisdiction, the court could not hear the case and it would have to be litigated in state or D.C. courts.

The Court stayed the litigation while it decided the issue of subject matter jurisdiction.

After several months, the Court finally ruled, and held that there was subject matter jurisdiction, so the case can be reactivated and continued in federal court…

The Court’s Memorandum Opinion (pdf)(full embed at bottom of the post) goes into detail on the nuances of federal court jurisdiction. You nerds can read it in its entirety.

Federal subject matter jurisdiction is something a court is required to consider throughout the case, even during trial. It’s clearly an issue that continued to trouble the court, as is issued an Opinion on February 4, 2019 (pdf.)(full embed at bottom of this post), dismissing the case for lack of subject matter jurisdiction, even though the court found that plaintiffs might have meritorious claims. Plaintiffs will have to file those claims, the Judge ruled, in a court other than federal court.

Here are some key passages from the Opinion:

Currently before the Court are Defendants’ motions to dismiss the action, along with other miscellaneous motions. Having reviewed the briefing, the Court concludes that Plaintiffs may have meritorious claims arising from their individual injuries as ASA members. However, the Court also concludes that Plaintiffs cannot seek relief for ASA’s injuries, because ASA is not a plaintiff and Plaintiffs do not and cannot assert derivative claims on its behalf. Without that relief, Plaintiffs cannot meet the amount-in-controversy necessary to pursue their action in federal court. Accordingly, and for the reasons stated below, the Court will grant Defendants’ motion to dismiss without prejudice.

* * *

As noted, Plaintiffs contend that this Court has subject matter jurisdiction under 28 U.S.C. § 1332(a). SAC ¶ 11. That statute provides that “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between,” among others, “citizens of different states.” 28 U.S.C. § 1332(a). Defendants argue that the Court’s previous holdings have made it legally impossible for Plaintiffs’ claims to exceed the $75,000 amount-in-controversy required to maintain this action under § 1332(a).6 More specifically, Defendants argue that Plaintiffs cannot seek remedies arising from injuries to ASA, and that in the absence of those remedies the damages, declaratory relief, and injunctive relief that Plaintiffs seek cannot be valued at greater than $75,000. See Original Defs.’ Mot. at 1. Defendants thus move to dismiss the action in its entirety for lack of jurisdiction. See id.

* * *

As Plaintiffs note, the parties and the Court have danced around the key issue—Plaintiffs’ ability to satisfy the amount-in-controversy required by § 1332(a)—for multiple rounds of briefing and opinions. See Bronner III, 317 F. Supp. 3d at 289; Bronner I, 249 F. Supp. 3d at 37–38. The waltz has now reached its crescendo, and Plaintiffs have been found wanting. As explained below, having evaluated the parties’ arguments, the Court concludes that Plaintiffs lack standing to seek damages arising from ASA’s alleged injuries. Although Plaintiffs may seek damages arising from injuries they suffered directly, those damages do not approach $75,000. And Plaintiffs have failed to demonstrate that the value of the injunctive and declaratory relief they seek, combined with those damages, exceeds $75,000. Thus, because it appears to a legal certainty that Plaintiffs cannot meet 28 U.S.C. § 1332(a)’s requirements if they prevail, the Court must dismiss this action without prejudice for lack of subject matter jurisdiction.

* * *

Plaintiffs lack standing to seek damages on behalf of ASA and it is clear, to a legal certainty, that their remaining claims do not raise an amount-in-controversy exceeding $75,000. Accordingly, the Court concludes that it lacks subject matter jurisdiction under 28 U.S.C. § 1332(a).14 See St. Paul Mercury Indem. Co., 303 U.S. at 289. Plaintiffs have raised allegations and presented evidence indicating that they may have meritorious claims, but they must assert those claims before the proper tribunal.

As can be seen from the plain wording of the opinion, the dismissal was not based on the merits. To the contrary, the court noted that the plaintiffs may have meritorious claims, based on what he has seen. Rather, the dismissal was solely jurisdictional based on the “amount in controversy” under federal decisions defining that concept.

Also, the decision had nothing to do with whether ASA and the individuals had a constitutional right to boycott Israel — that simply was not an issue, the court previously having permitted the lawsuit to move forward pending resolution of the “amount in controversy” issue. The Court previously ruled:

This case does not present a First Amendment issue because the Court’s passive enforcement of the obligations expressly assumed by the parties does not constitute state action. Plaintiffs take issue with actions by Defendants that were allegedly inconsistent with the ASA’s organizational purpose, constitution, and bylaws. See Compl. ¶ 1 (“An academic boycott of a foreign country is simply outside of the ASA’s authority to act.”). Thus, Plaintiffs ask the Court to enforce the contract that the Plaintiffs and Defendants freely entered into when they voluntarily subjected themselves to the constitution and bylaws of the ASA. See Meshel, 869 A.2d at 361. Defendants, Plaintiffs argue, voluntarily assumed certain obligations toward the ASA when they took on leadership positions within the organization, and that they violated those obligations through their roles in passage of the boycott resolution. See Compl. ¶¶ 79–80, 83–84, 88–89, 92–93.

Plaintiffs’ claims all arise under generally-applicable laws. See Armenian Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 607 F. Supp. 2d 185, 190–91 (D.D.C. 2009) (setting forth the elements of breach of fiduciary duty); Adamski v. McHugh, No. 14-cv-0094 (KBJ), 2015 WL 4624007, at *6 (D.D.C. July 31, 2015) (describing the law governing ultra vires claims); Daley, 26 A.3d at 730 (describing the doctrine of waste); Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 16 (D.D.C. 2014) (setting forth the elements of breach of contract), aff’d, 639 F. App’x 3 (D.C. Cir. 2016); D.C. Code § 29-405.24 (outlining the procedures all nonprofit organizations must follow). They also only seek to enforce rights created at the initiation of private parties; Individual Defendants voluntarily assumed roles where their right to expression would be limited by bylaws, the common law, and statute. Because Defendants voluntarily assented to these laws and the ASA’s constitution and bylaws, the Court’s interference with speech is passive and incidental to enforcement of a contract. Thus, enforcement of Plaintiffs’ rights derived from that contract would not constitute state action as contemplated under Sullivan and Shelley, meaning there would be no First Amendment issue with a judgment for Plaintiffs

The reality of the Judge’s Opinion has not stopped anti-Israel activists from claiming this was a decision on the merits and an judicial endorsement of the right to boycott.

Controversial former professor Steven Salaita, one of the named defendants, claims:

“I’m thrilled that this baseless case has been dismissed. It served no purpose other than persecuting those who dare to criticize Israeli policy and seek to end the occupation through peaceful means,” said Dr. Salaita. “Our victory further illustrates that it’s important to stand firm against attempts to silence those devoted to the cause of justice.”

The Center for Constitutional Rights, which acts as de facto counsel to the BDS movement, also claimed a substantive victory:

“These desperate lawsuits brought to silence advocates of Palestinian rights are not only losers—they’re helping to grow the movement by making even clearer who’s on the wrong side of history, who is the aggressor, who is unreasonable, and who wants to silence debate,” said Center for Constitutional Rights Deputy Legal Director Maria LaHood. “Freedom, justice and equality have always been on the right side of history.”

The Electronic Intifada reported on additional reactions portraying the win as substantive:

“The court basically said, in no uncertain words, that the plaintiffs suing ASA lied when they claimed to have ‘suffered significant economic and reputational damage.’” Radhika Sainath, senior attorney with the civil rights group Palestine Legal, told The Electronic Intifada. “But, as the court explained, ‘nowhere’ in the lawsuit could could the plaintiffs explain what that damage was. It didn’t pass the smell test.” ….

“The Zionists can’t accept the extent of revulsion over Israel’s crimes so they imagine that any group that stands up for justice has been tricked and manipulated into doing so,” Mark Kleiman, the attorney for J. Kehualani Kaunui and Jasbir Puar, told The Electronic Intifada.

“This blindness partially stems from their own reliance on tricks, bribes and subterfuge to slow down what is rapidly becoming a mass movement,” Kleiman added.

“In this lawsuit they simply made up accusations and then pretended they had been harmed by the things they imagined people had done.”

The case is not over, however, though it may be over in federal court.

According to Jennie Gross, one of the lawyers for the plaintiffs, the plaintiffs “certainly going to continue the litigation” but have “not decided yet whether they will appeal judge’s decision or will go directly to state court. What is not on the table is walking away from the case.”

In a lengthy press release, the Plaintiffs’ lawyers vowed to continue the fight:

When the American Studies Association adopted an academic boycott of Israel, several members of the ASA filed a lawsuit against that form of economic warfare against Israel, which discriminates against Israeli academics and violates fundamental principles of academic freedom. We represent those brave members.

Now, three years after the filing of this lawsuit, and upon review of the claims, the federal district court in the District of Columbia found only one reason to put off our clients’ claims – not because there was no substantive basis for the lawsuit, not because the current leadership of the ASA was justified for dragging its association into a bigoted effort to sabotage Israeli academics and institutions, but solely because it held that the amount in controversy requirement for federal court, $75,000, was not yet met.
The court recognized the value of our substantive claims, noting the case can be filed in state court: “Plaintiffs have raised allegations and presented evidence indicating that they may have meritorious claims, but they must assert those claims before the proper tribunal.” Order at 19.

We fully intend to go forward with this lawsuit, whether in federal court, should we choose to appeal the amount in controversy dismissal, or in state court, where there is no amount in controversy requirement.

In fact, since the initial filing, far more grievous conduct by the defendants has been uncovered, including a secret plot to overtake the authority of the ASA for the sole purpose of pursuing this hateful academic boycott, and to divert ASA funds to support their nefarious behavior. This plot was uncovered by our review of the defendants’ own documents, which we obtained in discovery.
Many of the defendants’ uncovered secret documents are quoted in a subsequent amended complaint which alleges, as the court describes: “that Defendants coopted an apolitical educational organization and, against its members’ wishes, turned that organization into a mouthpiece of the Israel boycott movement.” Order at 1.

The amended complaint reveals the defendants’ secret scheme to pack the national council with directors whose primary intention was to pass the academic boycott of Israel. It also describes how defendants manipulated the vote on the boycott, by freezing the rolls of the ASA membership to minimize the number of opponents able to vote, and how the defendants silenced dissenting voices – to the point where it refused to share letters opposing the boycott, including a letter from Association of American University Professors, among others.

Later, evidence of the financial damage to the ASA became apparent. Since the boycott was adopted, $294,000 has been withdrawn from the ASA’s trust fund. This information was gleaned from only two years’ worth of materials produced by defendants. Previously, there had been no withdrawals from the capital of the ASA’s trust fund. Defendants’ own documents show that these withdrawals were made to pay expenses related to the boycott. The ASA’s most recent tax return reflects an association deep in the red.

Our clients are four esteemed professors of American Studies. They include lifetime honorary members of the ASA, winners of the ASA’s Turpie Award, and a former editor of the ASA’s Encyclopedia of American Studies. They brought this case because they believe that the ASA’s academic boycott of Israel violates cherished principles of academic freedom. They opposed the academic boycott on the same grounds as the American Association of University Professors, the presidents of dozens of universities, numerous former presidents of the ASA, and many, many others. They also believe that the individual defendants violated democratic principles and the ASA Constitution and Bylaws in the adoption of the academic boycott.
We will present these claims and look forward to a decision on the merits.

Jerome M. Marcus
Marcus & Auerbach, LLP

Jennifer Gross
The Deborah Project, Inc.

Rachel Lerman
Barnes & Thornburg, LLP

The Louis D. Brandeis Center for Human Rights Under Law

We will continue to follow this case if and when it moves either to appeal or a different court.