Podcast Ep 74: The battle against anti-BDS state laws

Nora Barrows-Friedman The Electronic Intifada Podcast 13 April 2023

On episode 74, we continue our focus on legislative attempts to crush the boycott, divestment and sanctions campaign for Palestinian rights in the US.

More than 30 US states have passed measures condemning or attempting to restrict the boycott, divestment and sanctions (BDS) campaign for Palestinian rights, according to Palestine Legal, a group that defends activists for Palestinian rights from legal harassment.

We are joined by Suhad Babaa, producer of the documentary film Boycott which follows the fight against these anti-constitutional measures, and Alan Leveritt, publisher of The Arkansas Times, one of the subjects of the film.

Leveritt was required to declare that the newspaper would not boycott Israel as a condition of receiving state contracts.

Arkansas’ 2017 law requires the state to create a blacklist of companies that boycott Israel and forces public entities to divest from blacklisted companies.

Leveritt refused to sign the contract, and went to court. A lower court dismissed the initial challenge, but the 8th Circuit Court of Appeals reversed that dismissal in early 2021.

The appeals court ruled that the anti-BDS measure violated constitutional protections by penalizing political boycotts.

But shortly after, a larger panel of judges from the same court reversed the decision.

Representing Leveritt, the American Civil Liberties Union appealed to the US Supreme Court, hoping to reverse the law.

But in February, the high court decided not to hear Leveritt’s appeal to the 8th Circuit Court of Appeal’s ruling, keeping the draconian law on the books.

Arkansas maintained that the state can regulate economic activity, Leveritt explains.

“That’s the lie that the court bought – it conflicts with my ninth grade civics book dramatically. So that’s where we are. But I’ll make one point real quickly: This only applies in the states under the 8th Circuit,” he adds, which covers seven states.

“Our position has carried the day in every other court in the United States, except for in the 8th Circuit. So the anti-BDS laws have been overturned or been watered down, changed in every other state that this has been challenged. So we’ve only lost in the 8th Circuit, we have not lost in the country,” he adds.

Babaa explains that as attention to and sympathies for the Palestinian cause increase, Israel is shifting its strategy in the US and around the world.

“When you can’t win a debate, what do you do? You’ve got to shut it down. And so that’s effectively what these anti-boycott laws are trying to do: whether by hook or by crook, they’re going to chill dissent on Palestinian rights,” she says.

Babaa notes that even as federal judges consistently rule that these laws are blatantly unconstitutional, copycat laws are being used to target other areas of activism – using nearly identical language as the anti-BDS measures.

“In the spring of 2021, we began to see anti-boycott laws that are meant to shield the fossil fuels industry and the firearms industries emerge in places like Texas, Oklahoma, Alaska and beyond,” she warns.

“At the end of December 2022, we actually saw the copycat bills expand one more time to take aim at those who are concerned with abortion access, workplace equity and transgender people’s rights.”

She adds that Texas recently introduced a copycat bill “meant to take aim at those who are concerned with immigrant rights by shielding boycotts of companies that contract with ICE [US Immigration and Customs Enforcement].”

Everywhere across the US – except, for now, in the 8th Circuit – the right to boycott is still protected, “and that’s an important thing to note. At the same time, it means that this fight is going to continue to play out in the lower courts across the country and in our backyards,” Babaa says.

“As filmmakers and journalists, it was so important to us to make sure that stories like Alan’s see the light of day so that people understand what’s taking place in real time while we still have a chance to fight it.”

Articles we discussed:

Video production by Tamara Nassar

Theme music by Sharif Zakout

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Full transcript

Lightly edited for clarity.

Nora Barrows-Friedman: Hello, and welcome back to The Electronic Intifada Podcast. That was a trailer for the documentary film Boycott. We continue our focus on legislative attempts to crush the boycott, divestment and sanctions campaign for Palestinian rights in the US. In February, the US Supreme Court decided not to hear an appeal to the 8th Circuit Court of Appeals ruling last year that boycotts of Israel are not protected by the First Amendment of the US Constitution.

The American Civil Liberties Union, representing one of our guests today, had appealed to the country’s top court hoping to reverse a 2017 Arkansas law that required the state to create a blacklist of companies that boycott Israel and forced public entities to divest from blacklisted companies. The part of the law at issue in this case was the requirement that state contractors provide written certification that they do not and will not boycott Israel. That law was first struck down in 2021, when the 8th Circuit Court ruled that it was unconstitutional because it was an attempt by a government body to compel political speech.

But shortly after a bigger panel of judges from the same court reversed the decision. With the Supreme Court deciding not to hear the appeal. The 8th Circuit Court’s decision now stands. The ruling focused on a case brought by our guest Alan Leveritt, the publisher of the Arkansas Times, who was required to declare that the newspaper would not boycott Israel as a condition of receiving state contracts.

35 US states have passed measures condemning or attempting to restrict the boycott, divestment and sanctions, or BDS campaign for Palestinian rights, encouraged by Israel lobby groups and the Israeli government itself. Politicians claim that refusing to purchase Israeli products and criticizing Israel’s human rights violations or its state ideology, Zionism, is tantamount to anti-Jewish bigotry.

Joining us to talk about the significance of the Arkansas law standing in direct violation of the First Amendment and how this affects the movement for Palestinian rights in the US is Alan Leveritt, publisher of the Arkansas Times, and Suhad Babaa, producer of the documentary film Boycott, which is a fantastic deep dive into the fight against these anti-BDS measures. And is now out on streaming platforms. We’ll tell you how you can watch the film coming up. But first, Alan and Suhad, thank you so much for being with us today on The Electronic Intifada Podcast.

Alan Leveritt: Thank you for having us, Nora.

Suhad Babaa: Thank you for having us, Nora.

Nora Barrows-Friedman: Thanks for being here. Let’s dive into the current situation around the US Supreme Court deciding not to hear your appeal, Alan, over the 8th Circuit Court’s ruling last year. This allows the decision to keep this draconian law on the books. Walk us through the last few years since your refusal to sign essentially a loyalty oath to Israel in order to receive state contracts or advertisements for your local newspaper, up to what happened last month. And if you can lay out the details of the 2017 line and how it affected you.

Alan Leveritt: Well, it just sort of came out of the blue. I mean, we were an intensely local publication. We don’t address international issues anywhere in our magazine. We’re about Arkansas history, culture, politics. It’s an Arkansas magazine. And but the legislature passed this bill along with many other legislatures, requiring that we pledge – basically take a political position decision not to boycott Israel in return for to be able to continue receiving advertising from colleges, universities, health departments and state entities.

And we have a policy, we’ve been going, this is our 49th year, we’ve never, we’ve never taken a political position in return for advertising dollars. And we’re not prepared to start now. And so we went first, we just ignored it. We thought, you know, there’s – think of the hundreds of thousands of transactions that state government does every month, sheetrock hangers, paper, copiers, advertising. And we just assumed there was no way they could enforce such a law. And but there was one, one guy, one purchasing agent at a college that was going to not let it go. And he didn’t. And so we started losing our contract. And when we did, we sued. And for us, we’re not boycotting Israel. So for your listeners, viewers, we’re doing this strictly on First Amendment grounds. We don’t, you can’t tell us, you can’t tell us what to say. And so we sued the state, and we lost.

And so that’s – the state maintained that boycotting is an economic activity, and is, therefore, economic activity, therefore the state can regulate economic activity. And so that’s that’s the lie that the court bought – it conflicts with my ninth grade civics book dramatically. So you know, anyway, that’s where we are. But I’ll make one point real quickly. This only applies in the states under the 8th Circuit. So it’s about eight or nine states, we have won, this position has carried the day – our position has carried the day in every other court in the United States, except for in the 8th Circuit.

So the anti-BDS laws have been overturned or been watered down, changed whatever in every other state that this has come up that has been challenged, so we’ve only lost in the 8th Circuit, we have not lost in the country.

Nora Barrows-Friedman: Right. And the Supreme Court decided not to hear your case – are there any plans to bring this up again? What’s the next step here?

Alan Leveritt: Well, for us it’s damage control. I mean, we’re not a – we’re not a wealthy organization. We started on $200 in capital in 1974. So right now, it’s just damage control – we’re not signing the pledge, we made that clear. And so there’s this weird quirk in the law that says that it’s in the – it’s in the interest of the state of Arkansas, that all contractors pledge not to boycott Israel, except if they’ll give the state a 20 percent discount, and if it will give the state a 20 percent discount on whatever the product is, then we can go on – we can continue not – we can continue to boycott Israel. And that’s just fine. So basically, I gotta tip the state of Arkansas, like I tip my waiter, and if I give them a 20 percent, and I tip 20 percent. And so if I give them a 20 percent tip, then we can continue doing business, and so that’s what we’re gonna do.

Nora Barrows-Friedman: Wow. And you’ve also called on your readership. So you have reader support as well.

Alan Leveritt: We do, we charge $120 a year for full access to our website, which has a lot of political commentary on it. We have by now it’s crazytown in Arkansas in terms of the state legislature. They’re just obsessed with sex right now. Trans, gay, drag, you name it. And so we have a lot of commentary, a lot of coverage. And so we have as of this morning, we have 3,640 readers who have signed up at $120 a year and that is financing our – that completely pays for our newsroom. If this had happened two years ago, I may not have been able to refuse that signature, but we’re gonna be – as long as we keep growing our subscriptions I think we’ll be okay.

Nora Barrows-Friedman: And what about other publications other you know, activists, people who just want to be able to you know, get state contracts and not have to sign a loyalty oath to a foreign – I mean, these oaths are like, you don’t even have to sign a loyalty oath to the United States to receive, you know, state contracts. What’s the significance of –

Alan Leveritt: Every other news media in Arkansas has signed the pledge as far as – it’s interesting, we’re gonna, we’re gonna be meeting with him next week, there was a dermatologist who was giving a paper at the University of Arkansas. And after he gave it, they told him he needed to sign this pledge not to boycott Israel, he wouldn’t do it. So they wouldn’t give him his honorarium. And so, it turns out that they misread the law and there’s $1,000 floor on our law, and his honorarium was under $1,000. And so, when that was finally pointed out to him, I believe he did get his honorarium. But we’ll be doing a story on that coming up in the Arkansas Times.

Nora Barrows-Friedman: Great. I look forward to reading that. I mean, that reminds me of the journalist Abby Martin, who was scheduled to give a keynote speech in Georgia a couple of years ago. And under that state’s very similar anti-BDS measure, she had to sign a loyalty oath to Israel in order to receive the honorarium and she went ahead and sued. Suhad, I want to bring you in a little bit, let’s talk about the ways that similar anti-BDS laws are being applied in other states.

There are 35 states now which have passed this kind of measure, but many have been challenged by civil rights advocates. The film boycott focuses on Arkansas but also Texas where that measure was taken to court by a speech pathologist, Bahia Amawi, and in Arizona were an attorney working with incarcerated people, Mikkel Jordhal, challenged that state’s measure in court and both Bahia and Mikkel and their attorneys were able to convince the courts that these were direct affronts to their First Amendment rights. Can you talk a little bit about how these measures play out, and how Alan’s case is just one of many?

Suhad Babaa: Absolutely. So you know, our team at Just Vision has been following this story since the murmurings of anti-boycott laws began in the US, understanding that as they started to spread both in the United States and Europe, that they were driven and being mirrored and inspired by measures in Israel and driven by the Israeli government. We also understood that these laws quickly would become a potential template to silence dissent on a whole range of issues. And I think the first thing to kind of do here is to take a little bit of a step back, what’s happening, why are these laws coming into play?

And on what we’re seeing as a team, we’ve been doing this work for about 20 years. Americans are increasingly understanding that the situation on the ground in Israel and Palestine is unjust and want to take action. And when you can’t win a debate, what do you do, you’ve got to shut it down. And so that’s effectively what these anti boycott laws are trying to do. Whether by hook or by crook, they’re going to chill dissent on Palestinian rights. And so when we see the ratcheting up of what’s happening on the ground in Israel, Palestine, when we see the situation and the violence toward Palestinians continue to go unchecked.

It’s very natural that audiences, certainly in the United States and globally, want to find ways of meaningful solidarity with Palestinians. And we’ve seen this across time, we’ve seen this in South Africa and beyond. So a lot of what’s happening makes sense in context, a government who cannot control the debate that is going great lengths to shut it down. And there is a lot of – lots to fight.

And I think this is where Alan’s story intersects with a whole range of stories. We had the chance to interview and come to know all of the plaintiffs that had been challenging the laws at the time. So Abby Martin, Bahia Amawi, Mikkel Jordahl and beyond who said enough, you’re not going to be taking our free speech rights. And luckily, all of those plaintiffs have won their cases as Alan mentioned, federal judges consistently across the country have said these laws are blatantly unconstitutional. At the same time, what’s happening?

We’re seeing anti boycott laws that are copycat laws being used to target other issue areas. So or in 2021. In the spring of 2021, we began to see anti boycott laws that are meant to shield the fossil fuels industry and the firearms industries emerged in places like Texas, Oklahoma, Alaska and beyond. At the end of December 2022, we actually saw the copycat bills expand one more time to take aim at those who are concerned with abortion access, workplace equity and transgender people’s rights.

And we just saw this week that Texas introduced a new bill that’s actually meant to take aim at those who are concerned with immigrant rights by shielding boycotts of companies that contract with ICE. And what we knew from the get go was that there are no exceptions on issue areas. So often Palestine is treated exceptionally in our domestic politics, where anything as it relates to Israel/Palestine is given a rubber stamp by Democrats and Republicans alike. That’s how these bills got passed in the first place. But there are no exceptions. There’s only templates.

And that’s exactly what we’re seeing with the spread to fossil fuels, firearms, abortion, and so on. And so that’s where we are today with the Supreme Court decision not to hear Alan’s case, it does mean that the law of the land and everywhere except the states under the 8th Circuit’s jurisdiction continues to be that we have a right to boycott. And that’s an important thing to note. At the same time, it means that this fight is going to continue to play out in the lower courts across the country and in our backyards. And so, that’s the state of play currently. And it’s also part of the reason that as a team at Just Vision, and as filmmakers and journalists, it was so important to us to make sure that stories like Alan’s sees the light of day so that people understand what’s taking place in real time while we still have a chance to fight it.

Nora Barrows-Friedman: Right. Thanks for that. And I do want to go to a clip of Bahia Amawi, the speech pathologist in Texas speaking in the film about the right to boycott and then we’ll come right back

Bahia Amawi: I have a lot of family members that still reside in the occupied territory. I know what I’ve seen firsthand the injustice and inequality that goes on there. They close off main roads, only permitting Israelis to drive on those roads. The – basically the core idea is to make it as hard as possible for them to function and to have any livelihood at all. Then we have school closures and arresting young children. And I could not stay quiet and just go on with my life while I know that this law is gonna make it okay to continue this kind of oppression against the Palestinians.

Nora Barrows-Friedman: That was Bahia Amawi, a speech pathologist in Texas who successfully challenged that state’s anti-BDS law a couple of years ago. And let’s talk about more about the film and kind of the background here of the, you know, how these laws were introduced and passed around the US. In the film, Israel’s Ministry of Strategic affairs was highlighted. This is a body of the Israeli government tasked with crushing BDS actions and or, you know, organizing around the world and working directly with foreign governments including US lawmakers to do this.

The ministry even admitted in 2017 to working through front groups that quote do not want to expose their connection with the state. Today the ministry has been somewhat folded into the Israeli Foreign Ministry. But its former head, Gilad Erdan, who is now Israel’s ambassador to the US and the UN, who once denied that Israel had anything to do with these US laws, took credit a few years ago for passing these laws. He said, quote, “Our efforts are producing results. 27 US states now have counter BDS legislation. Let’s give a hand to all the governors and state legislators who supported this law, they deserve it.”

Let’s talk about the role that Israeli government officials and US-based Israel lobby groups have played in influencing or orchestrating restrictions of civil rights in the US. I mean, it’s just you know, if any other foreign government you know, the enemy of the day is Russia, for example. If Russian, you know, lobby groups and ministers had been pushing for legislation here in the US, we wouldn’t hear the end of it. So can you talk a little bit about how, you know how the Israeli government is influencing us politics right now?

Suhad Babaa: Sure. You know, in the case of the anti-boycott laws, and you already mentioned the Ministry of Strategic Affairs, so let’s start there. You know, in the research that we did around these anti-boycott bills, we really wanted to understand whose interests were driving this and how they came into being. And through that research, it brought us back to the Ministry of Strategic Affairs, which for those who are listening is a ministry under the Israeli government that was set up to with a stated goal of combating the boycott, divestment and sanctions movement, and any efforts to delegitimize the State of Israel globally. That’s quite broad.

What we also learned was that the Ministry of Strategic Affairs went ahead and wanted to fund efforts like the anti-boycott laws in places like the United States and Europe. And as you alluded to Nora, organizations in the US understood that this looked really bad. In fact, it could come into tension with American law around FARA, or the Foreign Agent Registration Act, if they took money directly from the Israeli government.

So the Israeli government in a very open public hearing with the Knesset actually deliberates on what they are going to do about it. And what they land on is that they would set up a non-governmental organization called Concert, where they would funnel the funds so that they could fuel these efforts in the United States. And there were many organizations that they funded, that we tracked in our story Boycott, including Christians United for Israel, the Israel Allies Foundation, and that brings us to the lobbying groups here in the United States and the various interest groups that are converging around these anti boycott laws and what’s happening on Israel/Palestine.

What we learned was that Christian evangelical organizations that take a fundamentalist view of Christianity and literally reads modern day Israel as biblical Israel, and therefore the Jews must return for the Second Coming to emerge, have aligned with your traditional Israel lobbying groups, around these anti-boycott bills, and a third interest group that has come into the mix that’s actually the the engine for the spread of these bills quickly across the country is ALEC, the American Legislative Exchange Council.

For those who are unfamiliar with ALEC, they are behind a number of regressive laws in this country, from Stand Your Ground laws to voting ID laws and beyond – and their ultimate aim is to align conservative legislative interests with corporate interests. And so that’s how they step into that picture.

Nora Barrows-Friedman: Alan, I want to come back to you, you know, being a publisher in the south of the US, you know, and with these kinds of lawmakers who have this very evangelical fundamentalist, and an actually anti-Semitic, you know, you know, that connection – worldview – to, exactly, connection to, to, to supporting Israel at all costs. You know, how do you even navigate as not just a publisher of a local newspaper, but as someone who is from Arkansas, when you see these, you know, Christians United for Israel, for example, and these lawmakers who are doing the bidding of this, like, you know, fanatical evangelical belief.

Alan Leveritt: There’s been tremendous growth in the evangelical movement during the last couple of decades, particularly in the South. It’s just something we have to deal with. I mean, it’s driving right now. We’re doing – the legislature is just absolutely absorbed with trans and LGBTQ issues right now, making it a felony to be – they’re trying to make it a felony to be trans. Just crazy stuff. But all this is driven by their reading of the Bible.

And Senator Bart Hester, who introduced the anti-BDS Bill is an evangelical Christian and he explained that we got to, we have to support Israel because we cannot have the second coming, and we cannot have the destruction of the earth in Armageddon until Israel regains its borders, its biblical borders under King David. To me, that’s the religious fantasy that’s driving – it’s hocus pocus that’s driving policy. And we need to be talking about roads and education and not about bathroom bills and anti-BDS bills. So you just deal with it. It’s part of our culture. And it’s not everybody by any means. Fortunately, Little Rock is a blue Island in a red state. And that’s where we are. So, but it still affects us. It’s still rough sometimes.

Nora Barrows-Friedman: Yeah, yeah, I can imagine. The film is now out on streaming platforms. And we recently reviewed it on The Electronic Intifada. So how has Boycott been received so far? And what kinds of conversations do you hope that it sparks around the US and elsewhere around the world as other countries face similar restrictions on free speech in order to shield Israel from criticism or application of human rights law?

Suhad Babaa: Thank you for the question, Nora. You know, we created this film, understanding that part of the reason these anti-boycott bills could pass and pass so quickly, was because there was a lack of public scrutiny on them. And so our aim with creating this film was to stir up a conversation to make sure our journalists and our media outlets are covering the story, but covering it accurately with an understanding of the implications of these laws on real people, and on our broader rights as Americans, and also to make sure that decision-makers were aware of what this meant for our constitutional rights, and that everyday people and communities across the country, and around the globe, had a tool to organize in the face of these laws being introduced in their backyards.

But importantly, I think even to take this a step further, to really start asking the question, how are these laws passing? What is it about the culture that we have in our political environment, and around Israel, that is allowing for bills like these to pass and to catch us on our heels, right? And I think what’s been meaningful is that this story has been really embraced across the world. We were very fortunate to be able to debut the film in places like South by Southwest, and Texas, Hot Docs in Canada, a number dozens of film festivals across the country and around the globe.

And in the fall, we began what is our community and educational outreach campaign with this film, where we’re working to reach students, activists, educators, journalists, decision-makers, community and faith leaders, and to equip organizers with a story like this one to use in their organizing efforts locally, whether that’s in places like Minnesota, or in places like the United Kingdom, where similar bills are being introduced and expected to drop any day now.

And so to date, we’ve had about 125, more than 125, in person screenings. We’re really glad that the film is now available for people to be able to watch it in their homes with their friends and loved ones and communities. And we’re going to keep campaigning on the story and knowing that these bills aren’t going to go away, and that we have a lot of work to do. And we’ve also seen some really meaningful progress, right? I think we’ve seen outlets really start to pick up the story – MSNBC, the Los Angeles Times, the New York Times, we’ve seen allies grow around what’s happening on the anti-boycott bills, people who are concerned with dissent really stepping into the mix people who are understanding this as a fundamental attack on our democratic freedoms, and really understanding that it’s starting to necessitate joining forces across communities to really work to challenge these bills.

We’ve also found that, you know, that people are just both absolutely shocked that this is happening right time and time again, every audience we’ve screened for is in dismay, that our political leaders think that they can get away with curbing our ability to speak. And so we know that this is a kind of classical instance, where our political leaders have acted in ways that are not aligned with our interests, or what the people want. And that with stories like this one, and efforts like yours to help bring attention to these, we believe there’s a long way we can go in creating change and a different kind of conversation on this.

Nora Barrows-Friedman: Thanks Suhad. And Alan, what about you? How are you – you know, when you speak to people about this legal battle that you’ve been involved in for years now, you know, how do you hope people in your community across the state of Arkansas respond to this film and your ongoing fight?

Alan Leveritt: It’s been an education for all of us, including myself. We showed the – we premiered the film in Little Rock as a fundraiser for the Arkansas chapter of the American Civil Liberties Union, and we had 200 people buy tickets, contributed to the ACLU. And I think Suhad was – I think there was a sense of outrage on behalf of a lot of people. They just weren’t aware of it. And the film itself got a standing ovation after the, after it showed.

So it does move people. It’s very affecting. And again, it’s just so remote from Arkansas. I mean, the whole idea of Israeli foreign policy and Palestinian rights, there are no Palestinians that live here to speak of. So it’s just really remote for us. And, but the film has been very, very effective and people reacted to it very much like I hoped they would.

Nora Barrows-Friedman: And how can people support the Arkansas times and check you out on the web?

Alan Leveritt: Yes, Arktimes.com

Nora Barrows-Friedman: Great, thanks Alan. And Suhad, how can people see the film and organize screenings of it in their own communities?

Suhad Babaa: So the film is now available on Amazon play, on Amazon, Google Play, Apple TV, and so on, you can check out www.justvision.org/boycott to get links directly to those platforms, so you can watch that in your homes with your families. We are also working to reach university campuses, community centers, congregations, conferences across the country. And so if you’re interested in hosting a public screening of the film, contact us at events@justvision.org and we would be delighted to get started with you.

Nora Barrows-Friedman: Great. Suhad Babaa and Alan Leveritt, thank you so much for all that you do and for being with us on The Electronic Intifada Podcast. Thank you.

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Nora Barrows-Friedman

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Nora Barrows-Friedman is a staff writer and associate editor at The Electronic Intifada, and is the author of In Our Power: US Students Organize for Justice in Palestine (Just World Books, 2014).