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Arkansas anti-boycott law draws scrutiny because of Israel-Hamas war

In late October the University of Arkansas made national headlines after an author and journalist announced he would not be speaking at the University to promote his new book.

"I received an email saying that I was invited to speak, and the University of Arkansas was very much looking forward to having me,” Thrall said. “But that unfortunately, I would have to sign this pledge not to boycott Israel or its settlements if I wanted to speak. And, and I told the university that I would not be willing to sign that pledge.”

Nathan Thrall, who is Jewish and has lived in Israel for the past 12 years, said he was asked to speak on campus about his book "A day in the life of Abed Salama" by the U of A's Middle Eastern Studies King Fahd Center earlier this year.

"The people who invited me were themselves opposed to the law that forces them to ask for this pledge.” Thrall said. “It's not entirely clear to me that the letter of the law really does require the university to demand this, even of speakers. But the university has chosen to interpret it in this very cautious way."

A spokesperson for the University of Arkansas declined an interview request, but in a statement said the requirement is in compliance with Arkansas state law Act 710, which prohibits the state and other Arkansas public entities (including the university) from entering into a contract valued at or more than $1,000 dollars with companies or individuals that boycott Israel.

The law, know informally as an anti-BDS law (which stands for boycott, divestment and sanction), passed the arkansas legislature in 2017. It is one of a number of copycat laws which are on the books in at least 37 other U.S. states. Arkansas' law though has been particularly prominent. That's becasue in 2018, the Arkansas Times - a Little Rock based newspaper challenged it in court. Brian Hauss is with the American Civil Liberties Union and a was a lawyer for the Times on the case. When the law first passed, the paper had advertising contracts with a local community college.

"And as a condition of keeping those advertising contracts, the college is requiring the Arkansas Times to certify that it wasn't engaging in these boycotts of Israel,” He said. “They're journalists and they care deeply about the First Amendment, and they felt that they would be abdicating their duties as journalists if they were to accede to an unconstitutional anti boycott certification of this nature. So we brought a lawsuit challenging it.”

The Arkansas Times does not support or oppose a boycott of Israel, but rather takes issue with having to pass, what Hauss called, a political litmus test to do business with the state. Eventually, they lost their case in the U.S. Court of Appeals for the Eighth Circuit.

"We brought lawsuits in a number of other states challenging these anti Israel boycott laws,” Hauss said. “And in all those cases we won in the federal courts, they said that the laws violated the first amendment.”

In February of this year the case made it to the doorstep of the U.S. Supreme court, but the court declined to hear it. So the ruling by the Eighth Circuit Court stands.

Hauss said the law is now under a bit more scrutiny today as war between Israel and Hamas intensifies and political tension around Israel and Palestine is bubbling over here at home.

"I think the current conflict is heightening tensions on all sides of this issue,” Hauss said. “So I think there will be more punitive attempts to enforce these laws...so we're probably going to continue to see a lot more litigation on this issue."

Arkansas state senator Bart Hester was the sponsor of the bill which became ACT 710 and said the bill was put in place for moments just like this.

"Well, I think it's just really important that we protect Israel in any way that's possible and any efforts that we can,” Hester said. “If you're a company that's boycotting Israel, the state of Arkansas will boycott you.”

Incidents of antisemitism have risen in the U.S. since the October 7th attack with 312 incidents reported just in October, according to a report from the Anti Defamation League - a Jewish advocacy group.

But Brian Hauss disagreed that these laws are meant to protect people from discrimination.

"I think whatever you might believe about whether boycott of Israel are anti-Semitic or not,” He said. “The fact of the matter is that the right to boycott is a fundamental First Amendment right. So if you take them away from groups you disagree with, inevitably they're going to be taken away from you as well."

Hester cited the eighth circuit's ruling and says this particular law does not violate the first amendment.

"People don't have to do business with the state of Arkansas,” He said. “If they don't want to do them on the terms that we set."

But, Hauss said the law is not simply stopping economic activity, but supressing speech, a right the supreme court upheld in a 1980s civil rights case. He said if the anti-BDS laws like this are upheld it opens the door for other bills that force businesses and individuals to choose a political side as the price of doing business.

"These anti-boycott laws have expanded to encompass boycotts of all kinds of different political issues,” Hauss said. “So it may start with boycotts of Israel, but it's not going to end there. And so I think even people who aren't personally participating in those boycotts have good reason to be worried that sooner or later these laws are going to start applying to political expression that they do engage in."

The Arkansas Legislature saw this happen in 2023 with several bills targeting companies and service providers policies on fossil fuels and firearms. One of those is ACT 411, which gives the state the power to boycott certain companies based on their environmental or gun policies. It went into effect this summer.

For author Nathan Thrall, laws like this have made his book tour more fraught than expected and he said he fears the result is chilling or altogether stopping discusions around a topic that is important to many Americans.

"Free speech or academic freedom organization would oppose this in any other context,” He said. “The notion that a speaker at a university can't talk unless they vow not to exercise their free speech rights in some other capacity outside the university, no one would accept that."

Bart Hester sees things differently though.

“Hey, if somebody wants to push back, I say bring it on,” he said. “Our college campuses are not places that are free for thought anymore. They are places that they condemn open thought and debate and discussion. And so there is nothing that surprises me that comes out of our college campuses.”

You can listen to a full discussion of Arkansas Act 710 with University of Arkansas law professor Uché Ewelukwa through the link below:

U of A Law Professor Uche Ewelukwa on Arkansas' Anti-BDS law
U of A law professor and scholar Uché Ewelukwa's work focuses on international investment law and arbitration, business and human rights. Here she discusses the context of Arkansas' anti-boycott law (Act 710) with Ozarks at Large reporter Daniel Caruth.

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Daniel Caruth is KUAF's Morning Edition host and reporter for Ozarks at Large<i>.</i>
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