American Jewish Committee (AJC) is disappointed by today’s United States Court of Appeals for Eighth Circuit decision in Arkansas Times v. Waldrip.

The court’s unfortunate decision, invalidating the way Arkansas has implemented its anti-boycott of Israel (BDS) statute, is not to be read as a blanket condemnation of all such statutes.

The court chose to read the statute as prohibiting the state from contracting with people who are participating in a boycott of Israel even if that participation was wholly unrelated to their state contract. 

AJC does not read the Arkansas statute, or BDS statutes in other states, as reaching such unrelated conduct. Rather the statutes constitutionally reach only boycott participation that does, or is likely to, adversely affect the state’s interest in the contract in question. 

A state may not, for example, bar a generic drug manufacturer from boycotting Israel in so far as it affects the foods it serves in its company cafeteria, much less what its executives do in their spare time. But a state may, and AJC believes should, exclude generic drug manufacturers who refuse to sell medicines made in Israel.

Arkansas can easily remedy the flaws in today’s decision both legislatively and administratively by limiting the statute and required contractor compliance certificate accordingly. AJC has already put into motion efforts to facilitate such changes.

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