A Chance to Right a Wrong Decision by Diane B. Kunz

June 18, 2021 ~ A Chance to Right a Wrong Decision by Diane B. Kunz ~

The U.S. Court of Appeals for the 8th Judicial Circuit has granted a rehearing en banc of the 8th Circuit Court’s  decision in Arkansas Times LP v. Waldrip, (No. 19-1378, 8th  Cir. 2021), which partly struck down Arkansas’ anti-Boycott Divestment Sanctions (”BDS”) law. This rehearing will give the full 8th Circuit a chance to reverse a decision which was not only legally unsound but one, which upheld, could be used to invalidate other states’ anti-BDS laws.

A word about how we got here. The Arkansas Times sued to invalidate the Arkansas anti-BDS law, passed in 2017. The federal District Court ruled against the newspaper. The Arkansas Times, supported by lawyers from CAIR and Palestine Legal, among others, who saw the potential of this case to further their anti-Zionist and anti-Semitic BDS campaign, then appealed the District Court’s decision to the 8th Circuit.  The three-judge appellate panel, by a vote of two to one, struck down part of the Arkansas law. Now, the 8th circuit has granted an en banc rehearing, which means that all active 8th Circuit Court judges will review the decision of the three-judge panel.

BDS supporters and their allies hailed the ruling as “a good day for the freedom of speech in Arkansas” which will lead to a general invalidation of all state anti-BDS statutes (Arkansas Times, February 12, 2021,  https://arktimes.com/arkansas-blog/2021/02/12/arkansas-times-wins-challenge-of-states-israel-boycott-rule). It is important to note that depicting the Circuit Court’s ruling as holding that anti-BDS laws violate the First Amendment is a mischaracterization of the decision. The Circuit Court’s opinion hinged on the interpretation of one phrase, “other actions,” as used in the statute; its decision did not invalidate the anti-BDS statute as a whole.  However, BDS supporters are already using the decision to buttress the false proposition that all anti-BDS laws infringe on free speech.

The Circuit Court’s decision was wrongly decided because it violated two rules of constitutional and legal construction. The first is that a statute should be interpreted, if possible, to avoid “not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” (United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)).  As the Brandeis Center wrote in its amici brief,  by misinterpreting the phrase “other actions,” the 8th Circuit decision created constitutional doubts.  By contrast, “interpreting “other actions” as covering only additional forms of commercial activity raises no First Amendment issue.” (Brandeis Brief, p. 4.)

The decision of the 8th Circuit also incorrectly applied the general principle of statutory construction  known by the Latin phrase ejusdem generis  (of the same kind).  This rule governs how a general word or phrase, in this case, “other actions,” should be construed, if it follows specifically enumerated terms. As Judge Jonathan Kobes wrote in his dissent, “The specific phrases before the ‘other actions’ provision—‘engaging in refusals to deal’ and ‘terminating business activities’—relate solely to commercial activities.  It follows that the more general phrase “other activities” does as well.” (p. 19). Instead, the majority erroneously concluded that the meaning of “other activities” should be contorted to include the regulation of speech, which would be a violation of the First Amendment, as well as commercial activities.

It is worth noting how anti-Israel prejudice has distorted the stance of the American Civil Liberties Union (“ACLU”) stance on anti-boycott laws.  The ACLU, which  joined the Arkansas Times’ appeal,   has been actively championing the overturning of all state anti-BDS laws.  Previously, the ACLU had  viewed anti-boycott legislation as consistent with First Amendment protections.   As Eugene Kontrovich pointed out, “state anti-BDS laws do not infringe on speech. They don’t regulate speech at all. That’s exactly what the ACLU has said when states passed similar antiboycott laws that weren’t about Israel.”   (Wall Street Journal, February 11, 2019, https://www.wsj.com/articles/for-the-aclu-antipathy-to-israel-trumps-antidiscrimination-11549928620).  On its website, the ACLU proclaims that “the ACLU stands on principle.”  (https://www.aclu.org/about-aclu).  Apparently its principles do not apply to BDS campaigns.