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Challenging Anti-Boycott Legislation in the US

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16 min read

Summary

Tariq Kenney-Shawa’s Al-Shabaka policy brief argues that US Anti-boycott legislation — bills and executive orders penalizing boycotts of Israel, introduced in 34 states as of October 2022 and applying to over 250 million US citizens — shields Israel from accountability for war crimes, occupation and Apartheid at the cost of Palestine solidarity advocates’ First Amendment rights, and is the first step in a wider assault on the constitutional protections for advocacy of any kind (Challenging Anti-Boycott Legislation in the US, lines 141-149). Its central exhibit is the Eighth Circuit’s 2022 ruling upholding Arkansas’s law against The Arkansas Times, which the brief reads as reinterpreting NAACP v. Claiborne Hardware Co. (1982) to protect only the speech accompanying a boycott, not the boycott itself (lines 209-215). Because the judiciary cannot be relied on alone — only 59 of 261 introduced anti-boycott bills had passed, but the Pro-Israel lobby keeps adapting, and anti-BDS laws already serve as templates for Copycat legislation against fossil-fuel and firearms boycotts — the brief recommends congressional votes against federal anti-boycott bills, intersectional organizing, union preparation, and public information campaigns (lines 147-159, 227-237).

What the file is

  • An Al-Shabaka policy brief (topic: Civil Society), published December 13, 2022, “16 min read”, downloaded from https://al-shabaka.org/briefs/challenging-anti-boycott-legislation-in-the-us/ (access basis: NGO). The original is the HTML page; the text copy supplied with it (4,808 words, lines 1-410) is a plain-text rendering of that page, with no page markers, so locators are line numbers.
  • The text copy includes the site’s frame around the brief: navigation and featured items at lines 1-128 and 271-410, including items dated September 2026 that belong to the page as captured, not to the 2022 brief. The brief itself runs lines 129-251, followed by the author’s biography (lines 249-251).
  • Text quality: the brief’s prose is clean and complete in both copies. One loss: the Overview carries a footnote marker 1 after “international law” (line 167), but no footnote text appears in either copy as supplied. The page offers a “Download PDF” / “View PDF” link (lines 259, 269); no PDF was supplied. A French translation is noted at line 239, with Al-Shabaka disclaiming responsibility for any change in meaning.
  • The brief’s own title, author line and date are at lines 133-135; the original HTML metadata gives a publication timestamp of 2022-12-12, while the page displays “Dec 13, 2022” and “(2022, December 13)” (lines 135, 255). The displayed date is used here; the metadata variant is recorded under Open questions.

Section by section

  • Executive Summary (lines 139-163): the thesis and recommendations in brief. As of October 2022, anti-boycott bills and executive orders had been introduced in 34 states, applying to over 250 million US citizens (line 143). The Arkansas Times sued Arkansas in 2018 after a public university withdrew an advertising contract as punishment for its refusal to relinquish the right to boycott Israel; the Eighth Circuit ruled against the newspaper, in a ruling binding on Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota (line 143). The proliferation is described by Human Rights Watch as “part of an increasingly global campaign” against Palestine rights advocates and, in the brief’s account, has been spearheaded by the Israeli regime itself, bypassing US foreign interference laws by establishing NGOs through which it funnels millions of dollars to US groups advocating anti-BDS legislation — a bipartisan effort led also by reactionary lawmakers and evangelical Christian organizations (line 145). Only 59 of 261 introduced anti-boycott bills had been passed at state and local levels, but copycat laws, 38 states’ anti-protest bills since 2017, and heightened voting restrictions show the wider stakes (lines 147-149). The four recommendations are given in full at lines 153-159 and repeated in Taking Action.
  • Overview (lines 165-171): restates the thesis, dates the Eighth Circuit ruling to June 2022, and notes that since 2014 dozens of states have adopted laws punishing individuals and companies that refuse to do business with those who profit from the occupation. “The message to US citizens is clear: Take action to hold Israel accountable for its crimes and you will pay.” (line 169). After the Arkansas decision the issue is expected to move to the Supreme Court.
  • Anti-Boycott Legislation: The US National Context (lines 173-187): the mechanisms — contract prohibitions and certification pledges, blacklists, and pension fund divestments. Examples: Texas officials blocked hurricane disaster relief in 2017 for those who refused to renounce BDS, conceding the rule as a misapplication only after public pressure; in 2018 Bahia Amawi, a Texas child speech pathologist, sued after losing her job for refusing to pledge she “will not boycott Israel” or illegal Israeli settlements (line 175); the Arkansas Times case (line 177). Federal district courts in Arizona, Georgia, Kansas and Texas blocked their states’ laws as unconstitutional compelled speech, but the laws were amended and reintroduced, with certification still required of companies doing more than $100,000 of business with the state (line 181). The front then extends to ESG investing: in September 2022 South Carolina’s treasurer joined officials threatening to cut ties with Morningstar over its Sustainalytics ESG ratings; an independent review found “neither pervasive nor systemic bias against Israel in Sustainalytics products and services;” (line 185), Missouri Attorney General Eric Schmitt called the practices “woke ESG investing”, Arizona Treasurer Kimberly Yee suggested holding Israeli companies to the same standards was anti-Semitic, and Morningstar then adopted measures including refraining from references to the West Bank as “occupied” and from reliance on UN Human Rights Council reports (lines 185-187).
  • Who is Behind These Bills? (lines 189-197): the American Legislative Exchange Council (ALEC), “an ultra-conservative venture backed by the Koch brothers”, drafts anti-BDS bills alongside its campaigns against public education, climate activism and LGBTQ+ rights and its defence of “Stand Your Ground” laws, Critical Race Theory bans and the Supreme Court’s June 2022 reversal of Roe v. Wade; Christians United for Israel (CUFI) smears BDS activists on campuses, in churches and on social media. “These alliances prove that being pro-Israel in the US also means being complicit in conservative efforts to sustain white supremacy, roll back reproductive and LGBTQ+ rights, and weaken democracy.” (line 193). The effort is bipartisan: Governor Andrew Cuomo’s 2016 New York executive order blacklisting businesses that refused to do business with Israel — “if you boycott against Israel, New York will boycott you” (line 197) — the Combating BDS Act of 2019 (computed from line 197: “Three years later”, after Cuomo’s 2016 order; the text gives no year), co-authored by Senators Joe Manchin (D – WV) and Marco Rubio (R – FL) and blocked on the Senate floor, and Assemblyman Dan Rosenthal joining 18 Republicans against Morningstar in August 2022.
  • Constitutionally Protected Rights Under Threat (lines 199-207): boycotts as a long US tactic — the pre-Civil War boycott of goods produced with slave labor, the 1955 Montgomery bus boycott, and the economic, cultural and academic boycotts that helped end South African apartheid — against a “selective intolerance” for boycotts of Israel. The precedent is NAACP v. Claiborne Hardware Co. (1982): a state’s right to regulate economic activity “could not justify a complete prohibition against a nonviolent, politically motivated boycott” (line 203). The case arose from the 1966 Claiborne County, Mississippi boycott of white-owned businesses; the Supreme Court protected it as composed of speech, assembly and petition, with Justice John Stevens emphasizing its purpose was to “vindicate rights of equality and of freedom” and that “petitioners sought to change a social order that had consistently treated them as second-class citizens” (lines 203-207). Boycotting Israeli goods produced in the West Bank, the brief argues, falls squarely within those rights.
  • Understanding the Eighth Circuit Court Ruling (lines 209-215): the procedural path of the Arkansas Times suit — dismissed, reversed by a three-judge panel which found the statute “imposes a condition on government contractors that implicates their First Amendment rights” (line 211), then reheard by the full Eighth Circuit, “known to be one of the most conservative circuit courts in the country”, which ruled for the state in June 2022. The full court affirmed that requiring someone to “give up a constitutional right” for a government contract does “impose an unconstitutional condition”, yet held First Amendment protection covers only the expressive actions accompanying a boycott, the act of economically boycotting being “non-expressive” conduct (line 213). Justice Jane Kelly’s dissent, as summarized: by requiring the state to judge prior speech and actions to detect a boycott, the statute may deter protected speech and protest unrelated to boycotts, “thereby limiting what a company may say or do” (line 215).
  • Wider Implications (lines 217-225): anti-BDS laws as templates. Kentucky’s SB 205 requires state contractors to certify in writing that they will not boycott energy companies; Indiana’s HB 1409, if passed, would require certification that a company will not discriminate against a firearm entity or firearm trade association (line 223). Since 2017, 38 states have enacted anti-protest bills, mostly in reaction to the Black Lives Matter movement and environmental protesters, and voting restrictions in swing states disproportionately target black activists and disadvantaged communities (line 225).
  • Taking Action (lines 227-237): the Eighth Circuit decision came two days before the Supreme Court overturned Roe v. Wade on June 24, 2022 — the brief’s warning against relying on the judiciary. Recommendations: members of Congress should vote against pending federal anti-boycott legislation, naming the bills introduced by Congressman Lee Zeldin (R) in March 2022 and Senator Tom Cotton (R) in July 2022; activists and citizens should contact representatives, stress the intersectional nature of the assault, and organize with groups affected by copycat legislation, with Palestine Legal, the US Campaign for Palestinian Rights (USCPR) and the American Civil Liberties Union (ACLU) named as resources; civil society organizations should train union leaders and members to incorporate the right to boycott into labor demands and to support targeted Palestinian or pro-Palestine workers; activists, academics and NGOs should produce informational material for public campaigns, with the documentary film Boycott (2021) as the example.
  • Author biography (lines 249-251): Kenney-Shawa is Al-Shabaka’s Associate Fellow, based in New York, co-host of its Policy Lab series, with a Master’s degree in International Affairs from Columbia University; his writing has appeared in The Los Angeles Times, Foreign Policy and The Nation, and he serves as Associate Director of Editorial for the Institute for Middle East Understanding.

Key passages

  • “Across the US, lawmakers and interest groups are ramping up efforts to shield Israel from accountability for war crimes, occupation, and apartheid.” (line 141)
  • “only 59 of the 261 anti-boycott bills introduced have so far been passed at the state and local levels” (line 147)
  • “could not justify a complete prohibition against a nonviolent, politically motivated boycott” (line 203, quoting NAACP v. Claiborne Hardware Co. as the brief presents it)
  • “imposes a condition on government contractors that implicates their First Amendment rights” (line 211, on the three-judge panel’s finding)
  • “if you boycott against Israel, New York will boycott you” (line 197, Governor Andrew Cuomo, as quoted in the brief)
  • “neither pervasive nor systemic bias against Israel in Sustainalytics products and services;” (line 185, the independent review of Morningstar’s Sustainalytics, as quoted in the brief)
  • “thereby limiting what a company may say or do” (line 215, on Justice Jane Kelly’s dissenting opinion, as summarized in the brief)

Evidence the work relies on

  • The brief is an advocacy policy brief, not a research report: its evidence is presented in the running text, largely through hyperlinks in the original HTML (the text copy retains the linked phrases but not the URLs or a notes list), and one footnote marker (line 167) whose text is not in the supplied copies.
  • Figures as given, all as of the dates the brief states: anti-boycott bills and executive orders introduced in 34 states, applying to over 250 million US citizens, as of October 2022 (lines 143, 175); 59 of 261 introduced anti-boycott bills passed at state and local levels (lines 147, 219); 38 states enacting anti-protest bills since 2017 (lines 149, 225); the $100,000 state-business threshold for certification requirements (line 181).
  • Court records as the brief presents them: the Eighth Circuit’s Arkansas Times litigation history and its 2022 ruling by the full court (dated June and July in the brief; see Open questions), with Justice Jane Kelly’s dissent (lines 209-215); the district-court blocks in Arizona, Georgia, Kansas and Texas (line 181); and NAACP v. Claiborne Hardware Co. (1982), with Justice John Stevens’s reasoning (lines 203-207).
  • Named official and corporate statements as the brief quotes them: Human Rights Watch’s description of the bill proliferation as “part of an increasingly global campaign” (lines 145, 191); Governor Cuomo’s 2016 statement (line 197); Morningstar’s independent review finding on Sustainalytics, and chief executive Kunal Kapoor’s insistence that the company does not support BDS (line 185); Eric Schmitt’s “woke ESG investing” and Kimberly Yee’s anti-Semitism suggestion (line 185).
  • State bills cited as copycat examples: Kentucky SB 205 and Indiana HB 1409 (line 223); federal bills cited: the Combating BDS Act of 2019 (computed from line 197: “Three years later”, after Cuomo’s 2016 order; the text gives no year) and the 2022 bills of Lee Zeldin and Tom Cotton (lines 197, 231).

Analysis

  • Method: a policy brief that builds its case from a legal precedent (Claiborne), a single adverse appellate ruling (the Eighth Circuit’s Arkansas decision) read as a reinterpretation of that precedent, a set of state-level examples (Texas relief funds, Amawi, Morningstar/ESG), and bill counts, then moves to recommendations. Its claims about who drives the legislation — the Israeli regime’s NGO funneling, ALEC’s drafting, CUFI’s campaigns — are asserted in the running text; in the supplied copy the supporting hyperlinks are not resolvable to their targets and the one footnote is missing, so those attributions rest on the brief’s own authority as presented here.
  • Perspective: the brief is written from within the Palestine solidarity movement, by Al-Shabaka’s Associate Fellow, and says so openly in its terms — “the Israeli regime”, “the pro-Israel lobby”, “reactionary lawmakers” — which are kept as its own terms on this page. Its distinctive move is jurisdictional widening: anti-BDS legislation is argued to matter most as a precedent, because the same certification machinery is already being copied against fossil-fuel and firearms boycotts and sits alongside anti-protest and voting laws.
  • Limits, on the brief’s own text: the Eighth Circuit ruling is dated July 2022 in the Executive Summary and June 2022 in the body (see Open questions); the expected Supreme Court stage is a prediction as of December 2022, not an outcome the brief records; and figures are given as of October 2022 and are not sourced to a named dataset in the text copy.

People, organizations, places and events

Concepts

How it relates to other sources

  • With Boycott, Divestment, Sanctions: The Global Struggle for Palestinian Rights: the movement whose programme Barghouti states is here shown under legal attack in the movement’s most important solidarity arena, the United States; the brief’s premise is that BDS is “increasingly effective” and that the legislation is the measure of that effectiveness (line 171).
  • With Palestine: A Socialist Introduction and Rethinking Statehood in Palestine: both record anti-BDS legislation as Lawfare — 27 US states with laws enacted since 2014, federal courts freezing the Kansas, Texas and Arizona laws, and the federal Israel Anti-Boycott Act expiring with the 115th Congress after ACLU-led opposition. Kenney-Shawa, two to four years later, updates the picture rather than contradicting it: 34 states with bills or orders introduced, district-court blocks now in four states (Arizona, Georgia, Kansas, Texas), amended laws surviving with a $100,000 certification threshold, and a ruling upholding a law from the Eighth Circuit, which in the brief “became the highest-level court to consider the issue” (line 143). A separate federal bill the brief names is the Combating BDS Act of 2019 (computed from line 197: “Three years later”, after Cuomo’s 2016 order; the text gives no year), blocked on the Senate floor (line 197).
  • With Recognizing and Saving Black Lives, Recognizing and Saving Palestinian Lives: The Power of Transnational Rhetorics in Locating the Commonality of Liberation Struggles: Abraham likewise measures BDS’s US strides by the legislative attempts to criminalise participation in it, and Kenney-Shawa’s copycat and anti-protest sections give that linkage a legislative mechanism — the same states’ anti-protest bills enacted mostly in reaction to BLM (lines 149, 225).
  • With From the River to the Sea: Essays for a Free Palestine: its Chapter 28 likewise records over thirty US states outlawing BDS as part of the imperial boomerang of colonial repression; Kenney-Shawa supplies the US constitutional argument and the case history behind that count.

Open questions

  • The Eighth Circuit ruling’s date is given two ways in the brief itself: “In July 2022, the Eighth Circuit Court became the highest-level court to consider the issue when it ruled against the newspaper” (line 143; repeated in substance at line 177) against “In June 2022, the Eighth Circuit Court of Appeals ruled to uphold an Arkansas law” (line 167), “the June 2022 ruling against The Arkansas Times” (line 211), and a decision that “came two days before the Supreme Court overturned Roe v. Wade’s guarantee of the right to abortion on June 24, 2022” (line 229), which by the brief’s own arithmetic is June 22, 2022 (computed from lines 211 and 229). Both forms are recorded; neither is corrected here.
  • The publication date is displayed as December 13, 2022 on the page (lines 135, 255), while the original HTML’s metadata timestamp is 2022-12-12. The displayed date is used in the frontmatter and raw file names.
  • The footnote marked 1 at line 167 has no text in either supplied copy; what it cited for the claim that BDS pressures Israel “to comply with international law” cannot be recovered from these files.
  • The brief expects the Arkansas issue to “move to the Supreme Court” (lines 169, 171); whether and when it did is outside this source.
  • Slips as printed, kept in the reading notes: “state contracts who support BDS” for contractors (line 179), lower-case “black activists” (line 149) and “democratic establishment holdouts” (line 197), and “Eight Circuit” for Eighth Circuit once (line 211).

Coverage

lines 1-410 of 410, read in full.

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