LITTLE ROCK, Ark. — Among the many new laws that Arkansas legislators approved last year was a requirement that contractors bidding on state jobs sign a pledge they are not boycotting Israel.
The potential First Amendment violation is Act 710 of 2017, also known as Arkansas Code Annotated 25-1-501 and “prohibits public entities from contracting with and investing in companies that boycott Israel.”
State Rep. Jim Dotson, R-Bentonville, one of the bill’s drafters, said there was not a particular incident in Arkansas that precipitated the bill being written, but it was a reaction to the “BDS (The Boycott, Divestment, Sanctions) movement” and more than 20 states had adopted the law prior to Arkansas. Illinois was the first state to enact rules banning boycotts of Israel in March 2016.
“That shows we’re not going to support any entity that is trying to cause detriment to the state of Israel,” Dotson said by phone.
According to BDSMovement.net, “The Boycott, Divestment, Sanctions (BDS) movement works to end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law.”
Dotson noted that only Arkansas “state” jobs are subject to the provision. Contracts with a total potential value of less than $1,000 are exempt from the law, the Southwest Times Record reported.
State Sen. Bart Hester, the bill’s co-author, did not call back for comment.
Dotson is a Realtor, and Hester lists both real estate and construction in his job description at the Arkansas legislature’s website.
Joey Dean, executive vice president of the Arkansas chapter of the Associated General Contractors of America, said the organization did not take a position on the matter.
“It doesn’t seem to be an issue for our members,” Dean said. “I don’t really know a whole lot of people who are boycotting Israel anyway. So we didn’t take a position.”
A Fort Smith architect bidding on a state job in west central Arkansas with the Arkansas Division of Building Authority brought the new law to the Times Record’s attention with the note that the firm has “no political axe to grind with either Israel or Palestinians, but this is a rather remarkable thing to require a citizen in order to get a job.”
The architect was required to submit a signed copy of an “Anti-Boycott of Israel Certification” to its general conditions and public funds contract as a stipulation for getting the award.
The Arkansas certification reads “I hereby certify that pursuant to Arkansas Code Annotated 25-1-501 et seq., neither I or the company named below are currently engaged in any boycott (s) of Israel. Additionally, I and the company named below agree not to engage in any boycotting of Israel activities for the duration of this construction contract.”
Section four of the Arkansas law states it is a “public policy of the United States to oppose boycotts of Israel and Congress has concluded as a matter of national trade policy that cooperation with Israel materially benefits the United States companies and improves American competitiveness.”
The Israel Anti-Boycott Act was introduced into the U.S. Senate on March 23, 2017, but still not been passed the Senate, House or the president’s desk to become law. U.S. Sen. John Boozman is a co-sponsor of the bill, which seeks to amend a 1970s law known as the Export Administration Act.
The American Civil Liberties Union won a case in Kansas in January arguing that a Kansas law that required a public school educator to certify she won’t boycott Israel violates her First Amendment rights.
In his opinion, U.S. District Judge Daniel Crabtree wrote, “(T)he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”
The law, which took effect July 1, requires that any person or company that contracts with the state submit a written certification that they are “not currently engaged in a boycott of Israel.”
The ACLU filed a lawsuit in December against a similar law in Arizona.
Following a revision in March to the Israel Anti-Boycott Act that would criminalize participation in certain political boycotts targeting Israel, ACLU attorney Brian Hauss noted that “political boycotts are fully protected by the First Amendment” and “the Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi.”
“If the Israel Anti-Boycott Act were to pass and take effect, we would strongly consider challenging it in court,” Hauss added.
“The court has rightly recognized the serious First Amendment harms being inflicted by this misguided law, which imposes an unconstitutional ideological litmus test,” Hauss wrote after the January injunction in Kansas. “This ruling should serve as a warning to government officials around the country that the First Amendment prohibits the government from suppressing participation in political boycotts.”
The Arkansas law defines “Boycott Israel” and “boycott of Israel” as “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.”
