Anti-BDS Legislation

Summary

Beginning in 2014, more than thirty U.S. states enacted laws restricting boycotts of Israel — most commonly by requiring that anyone entering a government contract first certify in writing that they are not boycotting and will not boycott Israel. These are the only laws in the United States that condition government contracts on a pledge regarding a foreign country. Federal district courts in Arizona, Kansas, Texas, and Georgia ruled the laws unconstitutional under the First Amendment, citing the Supreme Court’s foundational holding that political boycotts are protected speech. The Eighth Circuit Court of Appeals, sitting en banc, reached the opposite conclusion in 2022, upholding Arkansas’s law. The Supreme Court declined to resolve the split in 2023. This article documents the laws, the cases, and the unresolved constitutional question, drawing on court records and ACLU litigation.

Background

The Boycott, Divestment and Sanctions (BDS) movement is a Palestinian-led campaign that seeks to apply economic and political pressure on Israel through boycotts, modeled explicitly on the boycott campaigns directed against apartheid South Africa. The movement is controversial and its aims are contested, but the legislative response to it in the United States raised a distinct legal question independent of one’s view of BDS itself: whether the government may condition public contracts, employment, or benefits on a person’s agreement not to engage in a political boycott.

The constitutional backdrop is a 1982 Supreme Court decision. In NAACP v. Claiborne Hardware Co., the Court ruled that politically motivated boycotts are protected by the First Amendment, holding that such boycotts occupy “the highest rung of the hierarchy of First Amendment values.” That precedent — arising from a civil-rights boycott of white-owned businesses in Mississippi — is the foundation on which every challenge to anti-BDS laws has been built.

The Laws

The first anti-BDS measures were enacted in 2014, and the model spread rapidly. More than two dozen states adopted laws and policies restricting boycotts of Israel within about four years; by the mid-2020s the count exceeded thirty states. While the content varies by state, the most common mechanism is a contractor certification requirement: to do business with the state, an individual or company must certify that it is not engaged in a boycott of Israel.

The reach of these certification requirements is what generated the litigation. They applied not to large corporations making foreign-policy decisions, but to ordinary people and small entities seeking routine government work — a public-school teacher, a newspaper, a speech pathologist, an attorney. The pledge was required regardless of whether the boycott had any connection to the contracted work.

At the federal level, Congress repeatedly attempted to pass parallel measures. In 2019, a bipartisan group of 73 senators passed the Combating BDS Act as part of the first legislative package following the midterm elections, and members of the House Appropriations Committee attempted to attach anti-boycott provisions to government funding bills. No federal anti-BDS statute has been enacted, though state-level laws cover much of the country.

The Plaintiffs and the Cases

The challenges to these laws were brought by individuals whose circumstances illustrate the laws’ breadth.

Kansas — Esther Koontz. Esther Koontz, a public-school math teacher, was asked in July 2017 to sign a document certifying she was not boycotting Israel before she could work as a trainer in a state-run math and science program. She had begun boycotting Israeli companies and companies operating in the occupied Palestinian territories in protest of Israel’s treatment of Palestinians. After refusing to sign, she was denied the contract. Represented by the ACLU, she challenged the law. In January 2018, U.S. District Judge Daniel Crabtree granted a preliminary injunction, writing that “the Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”

Texas, Arizona, Georgia. Federal district courts in each state likewise blocked their anti-BDS certification laws. In April 2019, a federal court in Texas blocked the state law on First Amendment grounds in a case brought by the ACLU on behalf of four Texans, plus a separate case brought by the Council on American-Islamic Relations — making Texas the third federal court to strike such a law.

Arkansas — the Arkansas Times. The case that produced the deepest legal record involved not an activist but a newspaper that took no position on BDS at all. The Arkansas Times, a Little Rock paper, was required by a state college (Pulaski Technical College) to sign a no-boycott pledge in order to renew an advertising contract. Publisher Alan Leveritt refused, writing: “We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And, as journalists, we would be unworthy of the protections granted us under the First Amendment.” The paper, represented by the ACLU, sued.

The Pattern of Mootings

A recurring feature of this litigation reveals something about the laws’ defensibility: when courts moved toward striking the laws, legislatures repeatedly amended them rather than defend them to final judgment.

In each of several states, after a court ruled the law likely unconstitutional, the legislature changed the law that was challenged so that it no longer applied to the plaintiffs — typically by raising the contract-value threshold or exempting individuals — in order to moot the lawsuits. This tactic preserved the laws on the books for most applications while removing the specific plaintiffs with standing to challenge them, preventing a definitive ruling.

The Circuit Split and the Supreme Court’s Non-Intervention

The Arkansas case broke the pattern by producing a final appellate ruling — and an unexpected one.

A three-judge panel of the Eighth Circuit first ruled, in February 2021, that Arkansas’s Act 710 violated the First Amendment, finding the law written so broadly that it reached not only commercial conduct but the promotion and support of boycotts, which is constitutionally protected expression.

The full Eighth Circuit then reversed its own panel. Sitting en banc, on June 22, 2022, the court ruled that the Arkansas law did not violate the First Amendment, accepting the state’s argument that the statute regulated only “unexpressive commercial conduct” — the act of refusing to deal — rather than protected expression.

This created a direct conflict: four federal district courts had found such laws unconstitutional, while the Eighth Circuit upheld Arkansas’s. In February 2023, the Supreme Court declined to hear an appeal of the Eighth Circuit decision, leaving the Arkansas ruling in place as binding precedent in that circuit while the contrary district-court rulings stood elsewhere. The Arkansas decision remains, in the assessment of legal observers, an outlier — but a controlling one within its jurisdiction, and one the Supreme Court chose not to disturb.

Key Figures

• Esther Koontz — Kansas public-school teacher; lead plaintiff in the first major anti-BDS challenge; represented by the ACLU.
• Alan Leveritt / Arkansas Times — Newspaper publisher who refused the pledge on press-freedom grounds; plaintiff in the case that reached the Eighth Circuit en banc.
• American Civil Liberties Union — Lead litigator against anti-BDS laws nationwide, arguing they impose an unconstitutional ideological litmus test.
• NAACP v. Claiborne Hardware Co. (1982) — The controlling Supreme Court precedent holding political boycotts protected.
• Eighth Circuit Court of Appeals — The only federal appellate court to rule on the merits; upheld Arkansas’s law en banc in 2022.

Official Position

Supporters of anti-BDS laws — including the states that enacted them and pro-Israel advocacy organizations — argue that the laws regulate commercial conduct, not speech: a refusal to purchase goods, in their view, is economic activity the state may legitimately decline to subsidize through its contracts, and the laws are framed as anti-discrimination measures targeting conduct directed at a U.S. ally. The Eighth Circuit accepted a version of this argument.

Opponents — the ACLU, civil-liberties scholars, and the plaintiffs — argue that the laws compel speech and penalize protected political expression, conditioning government benefits on the surrender of a First Amendment right, in violation of both Claiborne Hardware and USAID v. Alliance for Open Society (2013), which held that the government cannot require organizations to profess a particular viewpoint as a condition of public funding. Four federal district courts agreed.

Consequences

As of 2026, anti-BDS contractor-pledge laws remain in force across most U.S. states, their constitutionality unresolved at the national level. The legal status of a citizen’s right to boycott Israel now depends on jurisdiction: protected by district-court rulings in several states, restricted under the binding Eighth Circuit precedent in others, and untested in most.

The practical effect documented in the cases is concrete: a math teacher denied a training contract, a newspaper pressured to abandon its editorial independence, individuals required to sign an ideological pledge about a foreign country to obtain ordinary public work. Whatever one’s view of the BDS movement, these laws single out one specific foreign nation for a protection extended to no other — there is no comparable statutory regime requiring contractors to pledge they will not boycott any other country on earth.

Significance

Anti-BDS legislation is the most concrete and legally documented item in this category because it does not depend on characterizing anyone’s motives or alleging any coordination — the laws are public statutes, the cases are public records, and the constitutional question is live in the federal courts. What the record establishes is narrow and firm: more than thirty U.S. states have enacted laws conditioning government contracts on a written pledge concerning a single foreign country, four federal district courts found such laws to violate the First Amendment, the only federal appeals court to rule on the merits upheld one, and the Supreme Court declined to resolve the conflict. The laws are unique in American law — no equivalent regime exists for any other nation — and they place the right to engage in a political boycott, which the Supreme Court has called the highest rung of First Amendment values, in legal jeopardy depending on which state a citizen lives in. The repeated pattern of legislatures amending challenged laws to moot lawsuits rather than defend them to judgment is itself part of the documented record, and it suggests the drafters understood the constitutional vulnerability of what they had written. This is suppression not by pressure or consequence but by statute — the most formal mechanism available — and it is the foundation on which the rest of this category builds.

Sources

• NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) — controlling Supreme Court precedent on political boycotts
• Arkansas Times LP v. Waldrip / Arkansas Times LP v. Vandergriff, 8th Cir. (panel decision Feb. 12, 2021; en banc decision June 22, 2022); cert. denied, U.S. Supreme Court, February 2023
• Koontz v. Watson, U.S. District Court for the District of Kansas (preliminary injunction, January 2018)
• ACLU, “Congress, Laws Suppressing Boycotts of Israel Are Unconstitutional. Sincerely, Three Federal Courts,” and “Third Federal Court Blocks Anti-BDS Law as Unconstitutional,” April 2019 — aclu.org
• Palestine Legal, “Legal Challenges to Anti-Boycott Laws,” updated September 2023 — legislation.palestinelegal.org
• Harvard Journal of Law & Technology Digest, “Eighth Circuit: State Law Forbidding Government Contractors from Boycotting Israel Is Unconstitutional,” 2021 — jolt.law.harvard.edu
• Lawfare, “Eighth Circuit Upholds Arkansas Anti-BDS Law,” July 8, 2022; “Eighth Circuit Strikes Down Arkansas’s Anti-BDS Law,” March 1, 2021
• USAID v. Alliance for Open Society International, 570 U.S. 205 (2013)