The BDS movement's small-ball strategy seems to be failing
May 19, 2023
(JNS) — At one point, the boycott, divestment and sanctions movement against Israel appeared to adopt a small-ball strategy: enough singles, even soft ones, in the court system would knock the pitcher out of the game. No need to swing for the fences.
That strategy, however, which seeks to win narrow injunctions that result in U.S. state legislatures tweaking relevant laws, appears to be a doomed game plan, as evidenced by recent court decisions.
The latest swing and miss came earlier this month when a federal appeals court rejected a challenge to a Texas law that blocks public funds from going to companies that boycott Israel.
In 2021, former Texas state employee Haseeb Abdullah—now a Travis County prosecutor—sued Texas Attorney General Ken Paxton and the state’s comptroller, arguing that Texas Government Code 880 infringed on his free speech and threatened his government pension.
“Texas’ anti-boycott law is both constitutional and, unfortunately, increasingly necessary as the radical left becomes increasingly hostile and antagonistic toward Israel,” said Paxton after the appeals court decision.
“Though some wish to get rid of the law and see Israel fail, the State of Texas will remain firm in our commitment to stand with Israel by refusing to do business with companies that boycott the only democratic nation in the Middle East,” he added. “In this case, I’m pleased to see the court recognize that the plaintiff lacked any standing to bring this challenge.”
The U.S. Court of Appeals for the Fifth Circuit upheld a 2022 lower court’s dismissal of the case, affirming that Abdullah failed to show that his own free-speech rights were being abridged. The Fifth Circuit also said that Abdullah’s claims of potential harm to his future pension payments was purely speculative.
“We agree with the district court that Abdullah lacks standing to pursue his claims,” a three-judge panel from the Fifth Circuit said in its April 11 ruling.
‘We will discuss options to determine our next steps’
While the BDS movement has been able to obtain injunctions against the enforcement of BDS laws in several states, no final ruling on any case thus far has struck down a BDS law as unconstitutional. Additionally, no plaintiff has been granted “prevailing party status” that would allow BDS supporters to recoup their legal fees.
“It brings up an increasingly important question, which is the cost-benefit analysis behind continually trying to challenge these anti-BDS laws,” attorney and policy specialist Joseph Sabag told JNS.
Executive director of the Israeli-American Coalition for Action, he led the drafting of anti-BDS legislation in a number of states. “At what point did they begin to consider putting in good money after bad? I have a feeling that we’re kind of approaching that point,” he asked.
In February, the U.S. Supreme Court declined to hear an appeal from the Arkansas Times, which had lost a federal appeals court case by a wide margin, alleging that the state’s BDS laws harmed the newspaper’s ability to secure government advertising dollars.
That was the first time a full federal court of appeals ruled on a BDS matter, rather than a smaller panel of judges. The resounding victory for Israel supporters means that while one movement is hitting home runs, its opponent can’t string together those soft hits and think that it will emerge victorious.
“They have been running around and claiming that obtaining these injunctions was the same thing as obtaining a merits-based ruling,” said Sabag. “I guess they’re in the business of doing that.”
Abdullah’s case was brought by the Constitutional Law Center for Muslims in America.
“We will discuss all options with our client to determine our next steps,” stated Christina Anne Jump, Abdullah’s lawyer. “Part of that process includes evaluating cases currently under consideration by the Supreme Court and how they may impact our own case.”
After the 8th U.S. Circuit Court of Appeals’ decision in the Arkansas Times case, the best hope for the BDS movement is to obtain a circuit split, whereby a different circuit court of appeals finds that an anti-BDS law in a similar case is unconstitutional. That would likely trigger an appeal to the Supreme Court to rectify the difference so that the Constitution is being applied equally across the country.
‘The reasoning of the court was structured and clear’
All eyes are now on the case of A&R Engineering v. the City of Houston, which was brought by the anti-Israel Council on American-Islamic Relations. The owner of the company suing is a Palestinian American.
That case also seeks to prove the unconstitutionality of Texas’ anti-boycott law, which requires a commitment not to boycott Israel in exchange for qualification for government contracts.
Texas passed its anti-BDS law in 2017 but amended it two years later in response to other litigation. It now includes minimum provisions for business size and contract amounts.
A U.S. district court judge entered a preliminary injunction in January, preventing Houston from including the anti-BDS clause in the contract and Texas from forcing its inclusion. A ruling from the 5th Circuit on the state’s appeal is imminent.
Sabag is confident that the 8th Circuit’s ruling will hold up as precedent.
“I think that the reasoning of the court was very structured and clear,” he said. “And we do think that there are strong reasons to suspect that the 5th Circuit will follow the 8th Circuit’s rationale.”