Joanna Curry
Following the lead of U.S. foreign policy and consistently with over 30 other states, in 2017 Minnesota passed a law that prohibits the state government from contracting with any entity that participates in an anti-Israeli movement known as BDS (Boycott, Divestment, and Sanctions).[1] The Minnesota bill passed with bipartisan support, but over the opposition of free speech proponents such as the ACLU.[2] The statute prohibits the state from entering into contracts with any vendors that engage in discrimination against Israel.[3] Discrimination is defined within the statute as including “actions that are intended to limit commercial relations with Israel.”[4]
While the Minnesota law has yet to be legally challenged, similar statutes in other states have faced First Amendment suits.[5] To date, federal district courts have overwhelmingly struck down anti-BDS statutes as unconstitutional, but in 2022 the Eighth Circuit in an 11-1 decision reached the opposite conclusion and upheld the constitutionality of an Arkansas anti-BDS statute.[6] This case, Arkansas Times LP v. Waldrip, is currently the only circuit level ruling addressing an anti-BDS statute.[7] Essentially, the Eighth Circuit ruled that the First Amendment protects the speech, activities and associations accompanying a boycott, rather than the boycott itself.[8] The Supreme Court recently denied certiorari in Waldrip, allowing the decision to stand and effectively protecting anti-BDS statutes within the Eighth Circuit from First Amendment challenges.[9]
Founded in 2005, the Boycott, Divestment and Sanctions (BDS) organization describes itself as a Palestinian-led “movement for freedom, justice, and equality.”[10] Citing inspiration from the South African anti-apartheid movement, BDS seeks to fulfill three goals: to end Israeli occupation of the West Bank, obtain full equality for Arab-Palestinian citizens of Israel, and allow for the return of all Palestinian refugees to lands from which they were evicted following the establishment of Israel in 1948.[11]
Critics of BDS state that the movement is nothing more than barely concealed antisemitism, with the ultimate goal of ending the world’s only Jewish state and the only democracy in the Middle East.[12] The Anti-Defamation League (ADL) describes BDS as “an international campaign aimed at delegitimizing and pressuring Israel, through the diplomatic, financial, professional, academic and cultural isolation of Israel, Israeli individuals, Israeli institutions, and, increasingly, Jews who support Israel’s right to exist.”[13] In 2017, the governors of all fifty U.S. states signed a statement describing their opposition to the BDS movement, stating that the BDS movement’s “focus on the Jewish State raises serious questions about its motivations and intentions” and that the governors “strongly condemn the BDS movement as incompatible with the values of our states and our country.”[14]
While there will almost certainly be continuing challenges to anti-BDS statutes in other states, it appears likely that until another circuit disagrees with the Eighth and a circuit split develops, the Supreme Court will not take up the question. Therefore, the Minnesota anti-BDS statute is likely insulated from legal challenges for the foreseeable future.
[1] Minn. Stat. Ann. § 3.226 (2022)
[2] Ellen Ailits, Israel Dissenters Silenced with New Law, Minn. Daily (July 17, 2017), https://mndaily.com/196068/opinion/stcolumn1-60aa/.
[3] Stat. § 3.226.
[4] Stat. § 3.226.
[5] Jordahl v. Brnovich, 336 F. Supp. 3d 1016 (D. Ariz. 2018); Ark. Times LP v. Waldrip, 37 F.4th 1386 (8th Cir. 2022), petition for cert. filed, (Oct 20, 2022) (No. 22-379); Martin v. Wrigley, 540 F. Supp. 3d 1220 (N.D. Ga. 2021); Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan. 2018); A & R Eng’g & Testing, Inc. v. City of Hous., 582 F. Supp. 3d 415, 435 (S.D. Tex. 2022).
[6] Waldrip, 37 F.4th 1386.
[7] Jordahl, 336 F. Supp. 3d 1016; Waldrip, 37 F.4th 1386; Wrigley, 540 F. Supp. 3d 1220; Koontz 283 F. Supp. 3d 1007; A & R Eng’g & Testing, Inc, 582 F. Supp. 3d 415.
[8] Waldrip, 37 F.4th at 1392.
[9] Id.
[10] What is BDS?, BDS, https://www.bdsmovement.net/what-is-bds (last visited Jan. 19, 2023).
[11] Id.
[12] The Boycott, Divestment and Sanctions Campaign, ADL, https://www.adl.org/resources/glossary-term/boycott-divestment-and-sanctions-campaign-bds (last visited Jan 19, 2023).
[13] Id.
[14] Governors United Against BDS: 50 Governors, 50 Rejections of BDS, AJC, https://www.ajc.org/governors (last visited Jan. 26, 2023).