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The Federal Court of Appeals in St. Louis has sealed an Arkansas court ruling that requires all state contractors to pledge not to boycott Israel. The ruling overturned a decision made last year by a panel of three judges from the 8th U.S. Circuit Court of Appeals, the same court.

The ruling is being hailed as a major blow to the anti-Israel boycott, divestments, sanctions (BDS) movement, and came after the Arkansas Times filed a lawsuit in 2019 following the passage of the 2017 state law that must include a public agreement that “the contractor will not ‘boycott’ Israel.” Mentioned in the documents.

The Arkansas Times argued that the law violated its First Amendment rights.

BDS supports anti-Israel policies. Anti-BDS laws, which bar the government from entering into agreements or investment opportunities with companies that discriminate against individuals with Israeli ties, are on the rise across the country.

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A federal appeals court overturned an earlier court ruling that the Arkansas law was unconstitutional, giving anti-BDS lawyers a victory.

A federal appeals court has overturned an earlier court ruling that Arkansas law was unconstitutional, giving anti-BDS lawyers a victory.
(AP Photo / Craig Ruttle)

Eugene Kontorovich is an expert in international law and the director of the Scalia Law School Center for the Middle East and International Law at George Mason.

“Progressive groups have used bogus constitutional arguments, mainly to defend the discriminatory behavior of Jewish groups,” Kontorovich said in a statement to Fox News Digital. “Ashamed to defend the BDS itself in public, they have claimed to oppose such laws within the legal framework. (Wednesday), that excuse has been removed, and Congress can confidently move forward to pass an anti-federal BDS law.”

The law in question, Arkansas Law 710, prohibits state entities from engaging with private companies unless the agreement includes a certificate stating that the company is not engaged in any kind of boycott against Israel. According to the Associated Press, the law applies to contracts worth 1,000 or more.

The Arkansas Times and the University of Arkansas-Pulaski Technical College were previously involved in an agreement in which the Times received advertising revenue from the college. In 2018, the college asked the paper to sign a certificate stating that the paper did not join the anti-Israel boycott.

Fixed photo of the United States District Court.

Fixed photo of the United States District Court.
(United States District Court for the Northern District of Illinois)

Alan Leveritt, publisher of the Arkansas Times, wrote a New York Times commentary and defended his role.

“We do not take political positions in exchange for advertising,” Leveritt wrote. “If we sign the affidavit, I believe we are signing our right to freedom of conscience. And as journalists, we would be ineligible for the protection we are entitled to under the First Amendment.”

The Arkansas Times then sued the college over the anti-BDS certificate, arguing that the certificate violated the paper’s First Amendment rights in two ways – “by placing an unconstitutional condition on the government contract and by making forceful speeches.”

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The Times claimed for a preliminary restraining order, which was later rejected. The court ruled that the financial boycott did not include the First Amendment because it was not a speech or expressive conduct.

The decision, however, was appealed and a subsequent panel of the 8th Circuit Court ruled that the requirement for certification was unconstitutional.

Merchant signing an electronic contract.

Merchant signing an electronic contract.

“It was not the business of Arkansas politicians to penalize our clients for refusing to participate in this ideological litmus test,” said Holly Dixon, executive director of the American Civil Liberties Union of Arkansas, representing the Arkansas Times during the case.

The University of Arkansas-Pulasky Technical College has argued that the law contains only meaningful business decisions that do not fall under the First Amendment. According to court documents, Arkansas’s standard rules of statutory explanation are aligned with state readings.

The court ultimately ruled in favor of the college, stating that Arkansas Supreme Court Act 710 would mean “purely commercial, non-expressive conduct prohibition.”

“We are not aware of any cases where the court has held that the requirement for a certificate of unsafe, non-discriminatory conduct is unconstitutionally compelling speech,” the court wrote.

The Israeli flag is flying over Jerusalem and the Temple Mount

Israeli flags fly over Jerusalem and Temple Mount

The appellate court ruled that the certificate did not bar the Arkansas Times from publicly criticizing or protesting the law. The law completely prohibits the paper from making discriminatory economic decisions with Israel.

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The court concluded that, due to the inherent invisibility of the paper’s financial decisions to outside observers, the law did not include the Times’ First Amendment rights.

Other states, including Arizona, Kansas and Texas, have taken similar measures as Arkansas law. They were also initially blocked and then implemented when the requirements for large contracts were reduced.

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“This is an undisputed victory against the racist BDS movement, which underlines that such anti-boycott laws do not in any way violate the First Amendment and states have the legal right to refuse to do business with organizations that engage in such racism. And Israel’s discriminatory boycott,” Arsene Ostrovsky told Fox News Digital.

Opponents of the law are expected to appeal the court’s decision, which could mean a final hearing in the US Supreme Court.

The Associated Press contributed to this article.