Cotton Praises Judge in Israel Boycott Case: He 'Acknowledged the Obvious'

Tom Cotton
Tom Cotton / Getty Images
January 25, 2019

Senator Tom Cotton (R., Ark.) praised a federal district judge's ruling Friday, after the judge upheld an anti-discrimination law as consistent with the First Amendment.

The Arkansas Times, a weekly paper based in Little Rock, argued that it could sell advertising space to public entities without certifying the Times was not boycotting Israel. It claimed mandating a certification abrogated its First and Fourteenth Amendment rights.

Arkansas' general assembly passed Act 710 in 2017, which allows the state government to contract only with companies that do not boycott Israel. It prohibits the government to work with companies "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."

The bill follows several years of increasing pressure from anti-Israel activists for companies to support the Boycott, Divestment and Sanctions (BDS) movement. Political efforts, including BDS, target Israeli organizations and companies doing business in Israel in an effort to erode support for the state of Israel and pressure the Israeli government to change its policies.

Cotton described Act 710 as a bulwark against efforts by "Israel's foes." He explained that, pursuant to the law, "Government contractors in Arkansas are required to certify they will not participate in the Boycott, Divestment, and Sanctions movement designed by Israel’s foes, or else face consequences." More than half of American states have passed laws opposing anti-Israel boycotts.

The Arkansas Times challenged the constitutionality of the law. It had agreed to sell advertising space to the University of Arkansas–Pulaski Technical College. In accordance to Act 710, the university asked the Arkansas Times to certify it was not involved in an anti-Israel boycott. The paper refused to comply.

The case, Arkansas Times v. Mark Waldrip, et al, came before Judge Brian Miller, the Chief United States District Judge of the United States District Court for the Eastern District of Arkansas. Judge Miller returned a decision on the case Wednesday.

The judge determined that the text of Act 710 concerns whether a company directs its purchasing activities in support of a boycott, not calls to boycott Israel or other forms of speech. He found that the First Amendment grants the Times the right  to speech and expressive conduct, but a "boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct."

Cotton praised the ruling, saying it had "acknowledged the obvious." According to Cotton, the law and ruling affirm that "Businesses do not have a constitutional right to discriminate against the Jewish State."

The judge pointed to early court decisions that protected the right to boycott. The anti-Israel case closely resembles International Longshoremen’s Association v. Allied Int'l, Inc., a 1982 case that determined that an American labor union did not have a Constitutionally protected right to boycott Soviet goods.

The case of the same year cited by the Times, NAACP v. Claiborne Hardware Co. established a narrow exception, but did not apply. The judge specified the boycotts in Claiborne were by those whose Constitutional rights were being limited, directed against the parties limiting their rights. Like the Soviet boycotts in Longshoremen, Anti-Israel boycotts are different, the judge argued, because they concern no "domestic legal interest" and are directed against a foreign government.

Accordingly, the judge upheld the constitutionality of the law and dismissed the Arkansas Times’ motion for a preliminary injunction.

In his statement, Cotton urged Congress to "build on this pro-Israel victory" by passing a federal law protecting states prohibiting BDS. He expressed support for S.1, originally titled "A bill to make improvements to certain defense and security assistance provisions and to authorize the appropriation of funds to Israel, to reauthorize the United States-Jordan Defense Cooperation Act of 2015, and to halt the wholesale slaughter of the Syrian people, and for other purposes."

Sen. Marco Rubio (R., Fla.) introduced S.1, at the start of the 116th Congress. The bill proposed to strengthen American support for Israel in defiance of BDS and other anti-Israel efforts. The bill would allow the federal government to refrain from working with organizations that refuse to work with the Israeli government. The bill was introduced in the 115th Congress with bi-partisan support, but never became law. The new bill is co-sponsored by Sens. Cory Gardner (R., Colo.), McConnell (R., Ky.), and Roy Blunt (R., Mo.).

Cotton praised the bill, now called the "Strengthening America's Security in the Middle East Act of 2019." He encouraged senators to pass the bill and "authorize continued military aid to Israel while protecting states like Arkansas that are combating the BDS movement."

The bill and other anti-BDS legislative measures have drawn criticism from some lawmakers and organizations. Following the judge's ruling, the ACLU of Arkansas, which represented the Times, claimed the law "contradicts two recent federal court decisions and ... would radically limit the First Amendment right to boycott."

Far left Congresswoman Rashida Tlaib (D., Mich.) called S.1 "literally an attack on our Constitution." She also claimed that the senators responsible for the bill "forgot what country they represent." Tlaib later clarified that the comment was directed at the senators, not Jews.

Rubio condemned Tlaib's remark as "a typical anti-Semitic line."

The comment was also condemned by a number of American Jews. Jonathan Greenberg, a senior fellow at the Salomon Center, wondered whether "someone is gonna keep track of how many classically anti-Semitic tropes Rep. Tlaib chalks up. She’s off to a flying start." Howard Lovy, a Jewish author,  called it the "old anti-Semitic ‘dual loyalty’ garbage … when the first thing she raises is the ancient specter of Jewish disloyalty, you know this is going to be a rough ride."

The judge in the Arkansas case acknowledged that the ruling might strike some as counterintuitive. "I routinely instruct jurors to follow my instructions on the law, even if they thought the law was different or think it should be different," he said. "This case presents an occasion in which I must follow the same principle." He expressed confidence in the soundness of his ruling, but admitted he had not foreseen the case's outcome before studying it in detail. "I have a duty to follow the law even though, before researching the issue, I thought the law required a different outcome than the one ultimately reached," he said.