Amicus Curiae Brief — Arkansas Times LP, Petitioner v. Mark Waldrip, as Trustee of the University of Arkansas Board of Trustees, et al.

Supreme Court briefNov 18, 2022

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No. 22-379

IN THE

Supreme Court of the United States

ARKANSAS TIMES LP,

Petitioner,

MARK WALDRIP, as Trustee of the University of

Arkansas Board of Trustees, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth

Circuit

BRIEF OF AMICI CURIAE T’RUAH, J STREET,

AMERICANS FOR PEACE NOW, AND

PARTNERS FOR PROGRESSIVE ISRAEL IN

SUPPORT OF PETITIONER

Joseph W. Mead

Counsel of Record

Elizabeth R. Cruikshank

Mary B. McCord

Institute for Constitutional

Advocacy and Protection

Georgetown University

Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9765

jm3468@georgetown.edu

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................1

SUMMARY OF ARGUMENT ..................................3

ARGUMENT.............................................................5

I. FROM THE AMERICAN REVOLUTION TO

THE PRESENT, AMERICANS HAVE

INVOKED THEIR RIGHT TO BOYCOTT to

EXPRESS DISAGREEMENT WITH

GOVERNMENT POLICIES. .............................5

The Boycott in Early America ...............5

Americans Boycott Nazi Germany ........8

Civil Rights Boycotts ...........................11

1. Montgomery Bus Boycott .....................12

2. Divestment from South Africa .............13

3. Claiborne County Boycott ....................14

II. THE DECISION BELOW JEOPARDIZES THE

RIGHTS OF JEWS AND NON-JEWS ALIKE.

..........................................................................15

Boycotting is a Jewish Tradition as

Well as an American One ....................15

The Decision Below Ignores the Past

and Threatens the Present of American,

and Jewish, Boycotts ...........................18

The Claim that Political Speech is

Motivated by Antisemitism Is Not Itself

Grounds for Bringing it Beyond First

Amendment Protection ........................21

A Robust First Amendment Protects

the Jewish Community and Other

Minority Groups ..................................25

CONCLUSION .......................................................27

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Ark. Times LP v. Waldrip as Tr. of Univ. of

Ark. Bd. of Trs.,

37 F.4th 1386 (8th Cir. 2022) ............................. 18

Gayle v. Browder,

352 U.S. 903 (1956)............................................. 12

NAACP v. Alabama ex rel. Flowers,

377 U.S. 288 (1964)....................................... 13, 19

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982)..................................14, 15, 23

STATUTES

Ala. Code § 41-16-5(a)(1).......................................... 20

Ark. Code § 25-17-101 .............................................. 25

Ky. Rev. Stat. § 41.480 ............................................. 21

Ky. Rev. Stat. § 45A.607 .......................................... 20

Ohio Rev. Code § 9.76 (B) ........................................ 20

S.C. Code § 11-35-5300(A) ....................................... 20

Tex. Gov. Code § 808.001(1)..................................... 19

W. Va. Code §§ 12-1C-1 to -7 ................................... 21

Wyo. Stat. § 13-10-302 ............................................. 21

OTHER AUTHORITIES

$500,000 Sought for Nazi Boycott, N.Y. Times,

Sept. 11, 1933, at 8 ............................................. 10

AJC Calls for Vigilantes Body to Aid Boycott,

Jewish Daily Bulletin, June 22, 1934,

https://perma.cc/2EU2-NRSZ ............................. 10

American Jewish Committee, The AntiGerman Boycott: A Statement of the

Position of the American Jewish Committee

(1935)................................................................... 23

Anti-Boycott Legislation Tracker, JustVision,

https://justvision.org/boycott/legislationtracker ................................................................. 21

Jeremy Ben-Ami & Jill Jacobs, Americans

Shouldn’t Forfeit Their Freedom of Speech

So States Can Support Israel, NBC News

(Jan. 15, 2020), https://perma.cc/5A5Z8TB7 .................................................................... 24

Boycott ‘Antisemitic’ Ben & Jerry’s, Says

Simon Wiesenthal Center, The JC (Oct. 21,

2021), https://perma.cc/XCS7-DPRN ................. 20

Boycott Fight to Finish, Wise Insists at

Geneva, Jewish Daily Bulletin, Aug. 22,

1934, https://perma.cc/S3PV-E6R7 .................... 10

Boycott Only Weapon to Fight Nazi

Intolerance, General Clinnin Declares,

Jewish Daily Bulletin, Sept. 12, 1933, at 2,

https://perma.cc/8M9C-Q52G ............................. 11

Br. of Amici Curiae States of Arizona et al.,

Ark. Times v. Waldrip, No. 19-1378 (8th

Cir.), 2021 WL 1499712 ...................................... 24

Br. of Amicus Curiae American Jewish

Congress, NAACP v. Claiborne Hardware

Co., No. 81-202, 1981 WL 390216 (1981) ........... 18

Br. of Amicus Curiae Shurat Hadin-Israel

Law Center, Ark. Times v. Waldrip, No. 191378 (8th Cir.), 2019 WL 2526775 ..................... 21

Br. of Amicus Curiae Zachor Legal Institute,

Ark. Times v. Waldrip, No. 19-1378 (8th

Cir.), 2021 WL 1603980 ...................................... 22

T.H. Breen, The Marketplace of Revolution:

How Consumer Politics Shaped American

Independence (2005) ............................................. 7

Cecelie Counts, Divestment Was Just One

Weapon in Battle Against Apartheid, N.Y.

Times, Jan. 27, 2013,

https://perma.cc/PWK3-BE6Q ............................ 13

Clevelanders Rally Behind Bus Boycotters,

Cleveland Call & Post, at 1B (Mar 17,

1956) .................................................................... 16

Donald R. Culverson, The Politics of the AntiApartheid Movement in the United States,

1969-1986, 111 Pol. Sci. Q. 127 (1996) ............... 13

Carol Faulkner, The Root of the Evil: Free

Produce and Radical Antislavery, 18201860, 27 J. Early Republic 377 (2007).................. 8

Marjorie N. Feld, Nations Divided: American

Jews and the Struggle over Apartheid

(2014)................................................................... 16

Monroe Friedman, Consumer Boycotts:

Effecting Change Through the Marketplace

and Media (1999) ................................................ 15

George Washington to the Hebrew

Congregation in Newport, Rhode Island, 18

August 1790, Founders Online, National

Archives, https://perma.cc/XM7V-SLTX ............ 26

Lawrence B. Glickman, Buying Power: A

History of Consumer Activism in America

(2009)............................................................... 8, 15

Moshe Gottlieb, In the Shadow of War: The

American Anti-Nazi Boycott Movement in

1939–1941, 62 Am. Jewish Hist. Q. 146

(1972)................................................................... 10

Moshe R. Gottlieb, American Anti-Nazi

Resistance, 1933-1941: An Historical

Analysis (1982)...................................................... 9

Moshe R. Gottlieb, The Anti-Nazi Boycott

Movement in the United States: An

Ideological and Sociological Appreciation,

35 Jewish Soc. Stud. 198 (1973) ........................... 9

Moshe R. Gottlieb, The First of April Boycott

and the Reaction of the American Jewish

Community, 57 Am. Jewish Hist. Q. 516

(1968)................................................................... 23

vii

Shirley Halperin, UTA Chief Jeremy Zimmer

Implores Agents: ‘Please Support the

Boycott of Kanye West’, Variety (Oct. 23,

2022), https://perma.cc/T7UY-7QZW ................. 20

Julie L. Holcomb, Moral Commerce: Quakers

and the Transatlantic Boycott of the Slave

Labor Economy (2016) .......................................... 7

Paula E. Hyman, Immigrant Women and

Consumer Protest: The New York City

Kosher Meat Boycott of 1902, 70 Am.

Jewish Hist. 91 (1980) ........................................ 16

David Jackson, Obama Inspired by AntiApartheid Campaign, USA Today (Dec. 6,

2013), https://perma.cc/5ZPH-UBGR ................. 13

The Jew Must Battle Hitlerism Standing Up,

Declares Golden, Jewish Daily Bulletin,

July 13, 1934, at 7, https://perma.cc/WXV6QZPZ.................................................................... 11

Stephen Kaufman, Pressure to End Apartheid

Began at Grass Roots in U.S., U.S. Mission

to Int’l Orgs. in Geneva (Dec. 17, 2013),

https://perma.cc/W2V2-GZKP ............................ 13

Martin Luther King, Jr., Stride Toward

Freedom: The Montgomery Story (1958) ............ 12

Richard Knight, Sanctions, Disinvestment,

and U.S. Corporations in South Africa, in

Sanctioning Apartheid (Robert E. Edgar

ed., 1990), https://perma.cc/WPB4-5KGU.......... 13

The Jerusalem Declaration on Antisemitism,

https://perma.cc/NUT9-2ZE4.............................. 22

viii

Jewish Groups Aiding NAACP, Jewish

Telegraphic Agency, Oct. 8, 1976, at 4,

https://perma.cc/FTH5-9XFS .............................. 18

Justice Department Denies Aiding Nazis, N.Y.

Times, June 2, 1934, at 9.................................... 11

Lucius S. Landreth, A Hundred and Ten Years

of the Constitution, 38 Am. L. Registry 417

(1899)..................................................................... 6

The Letters of Richard Henry Lee Vol. 1: 17621778 (James Curtis Ballagh ed., 1911),

https://perma.cc/B7WD-CAKS ............................. 6

Major Synagogue, Church Groups Launch

Drive to Aid NAACP Appeal, Jewish

Telegraphic Agency, Oct. 14, 1976, at 2,

https://perma.cc/4YB7-M6HU ............................ 17

August Meier & Elliott Rudwick, The Boycott

Movement Against Jim Crow Streetcars in

the South, 1900-1906, 55 J. Am. Hist. 756

(1969)................................................................... 12

Aryeh Neier, Defending My Enemy (1979).............. 26

Note, Boycotting a Boycott: A First

Amendment Analysis of Nationwide AntiBoycott Legislation, 70 Rutgers U.L. Rev.

1301 (2018) ............................................................ 7

Matthew C. Porterfield, State and Local

Foreign Policy Initiatives and Free Speech:

The First Amendment As an Instrument of

Federalism, 35 Stan. J. Int’l L. 1 (1999)............... 7

Resolution of September 22, 1774, U.S.

Continental Congress, Charles Thomson &

Continental Congress Broadside

Collection, Library of Congress,

https://perma.cc/P3V2-WAJL ............................... 6

Marc Saperstein, Martyrs, Merchants and

Rabbis: Jewish Communal Conflict as

Reflected in the Responsa on the Boycott of

Ancona, 43 Jewish Soc. Stud. 215 (1981)........... 16

Chris Simkins, US Anti-Apartheid Movement

Helped Bring Change to South Africa, VOA

News (Apr. 24, 2014, 4:39 p.m.),

https://perma.cc/UA92-Q29F .............................. 14

Andre L. Smith, Consumer Boycotts Versus

Civil Litigation: A Rudimentary Efficiency

Analysis, 43 How. L.J. 213 (2000) ...................... 14

Glenn Curtis Smith, An Era of NonImportation Associations, 1768-73, 20 Wm.

& Mary Q. 84 (1940) ............................................. 5

Chris Taylor, Boycott Nation: How Americans

Are Boycotting Companies Now, Reuters

(June 29, 2022), https://perma.cc/5QDWDNYT .................................................................. 20

Edward Raymond Turner, The First Abolition

Society in the United States, 36 Pa. Mag.

Hist. & Biography 92 (1912)................................. 7

U.S. Jews’ Connections with and Attitudes

Toward Israel, Pew Research Center (May

11, 2021), https://perma.cc/RPS5-JFVC ............. 23

UAHC Steps Up Anti-Apartheid Campaign,

Jewish Telegraphic Agency, Oct. 15, 1986,

https://perma.cc/QX2T-FX6V ............................. 17

Samuel Untermyer, To Our Patriotic GermanAmerican Citizens, Jewish Daily Bulletin,

May 15, 1934 ....................................................... 25

Virginia Nonimportation Resolutions,

Founders Online, National Archives,

https://perma.cc/HY75-QCRN .............................. 5

Albert Vorspan & David Saperstein, Tough

Choices: Jewish Perspectives on Social

Justice (1992) ...................................................... 26

Votes and Proceedings, Oct. 20, 1774, U.S.

Continental Congress, Peyton Randolph &

Continental Congress Broadside

Collection, Library of Congress,

https://perma.cc/6UUH-HD44 .............................. 6

John M. Wilson, Conflict of Conscience: A

Cultural Boycott of South Africa is Forcing

Entertainers to Make Hard—and

Expensive—Moral Choices, L.A. Times,

Feb. 24, 1985, at U1 ............................................ 14

Stephen Samuel Wise, Challenging Years

(1949)................................................................... 10

The Working Definition of Antisemitism,

International Holocaust Remembrance

Alliance, https://perma.cc/L6Q9-9FVP............... 22

INTEREST OF AMICI CURIAE

Jewish tradition reflects a commitment to freedom

of expression. Amici T’ruah: The Rabbinic Call for

Human Rights, J Street, Americans for Peace Now

(APN), and Partners for Progressive Israel represent

large swaths of the American Jewish community who

may personally oppose the global Boycott,

Divestment, Sanctions (“BDS”) movement but who

recognize the fundamental right to freedom of

speech. 1

T’ruah brings together rabbis and cantors from all

streams of Judaism, together with members of the

Jewish community, to act on the Jewish imperative to

respect and advance the human rights of all people.

T’ruah represents more than 2,300 Jewish clergy

across North America and thousands of Jewish lay

people and activists. Grounded in Torah and Jewish

historical experience and guided by the Universal

Declaration of Human Rights, T’ruah calls upon Jews

to assert Jewish values by raising their voices and

taking concrete steps to protect and expand human

rights in North America, Israel, and the occupied

Palestinian territories. While T’ruah does not reject

out of hand the strategic, targeted use of boycott and

1 Counsel for amici curiae authored this brief in its entirety,

and no party or its counsel, nor any other person or entity other

than amici or their counsel, made a monetary contribution

intended to fund its preparation or submission. All parties were

timely notified of proposed amici’s intent to file this brief and

consented to its filing.

divestment in justice campaigns, T’ruah does not

affiliate with the BDS movement.

J Street organizes and mobilizes pro-Israel, propeace Americans who want Israel to be secure,

democratic, and the national home of the Jewish

people. Working in American politics and the Jewish

community, J Street advocates for policies that

advance shared U.S. and Israeli interests as well as

Jewish and democratic values, leading to a two-state

solution to the Israeli–Palestinian conflict. Vibrant

debate has characterized the Jewish tradition for

millennia. The same openness should govern

discourse about Israel today. J Street opposes the

global BDS movement, and at the same time opposes

penalizing those who exercise their right to engage in

boycott activity.

APN’s mission is to educate and advocate with

U.S. policymakers, political leaders and the Jewish

community around supporting and adopting policies

that will lead to comprehensive, durable, Israeli–

Palestinian and Israeli–Arab peace. APN is the sister

organization of Shalom Achshav, Israel’s preeminent

peace movement.

Partners for Progressive Israel supports Israelis

working to ensure civil rights, equality, social justice,

and a durable and just peace between Israel and its

neighbors.

Amici believe that the Jewish community is

strengthened by vigorous debate on issues that are

vital to the wellbeing of Israel and the worldwide

Jewish community. Free speech—including the right

to boycott and the right to speech with which we

vehemently disagree—constitutes an essential

component of democracy, a basic human right, and a

fundamental value of Judaism. Jewish tradition

teaches this in Talmud, where the rabbis frequently

use colorful language to repudiate each other’s

opinions, while leaving even rejected opinions in the

text for later study. Those who believe that there is

one acceptable view on Israel should not be allowed to

impose constraints on what constitutes permitted

speech in the Jewish community or the broader

marketplace of ideas. Censorship of those who

question American or Israeli policy puts the

intellectual integrity and future of the Jewish

community at risk and threatens to further calcify

opinions about the Israeli–Palestinian conflict,

making more remote the realization of a just and

secure future for Israelis and Palestinians.

SUMMARY OF ARGUMENT

From the founding to the present, Americans have

engaged in politically motivated boycotts. And for just

as long, Americans have viewed their participation in

these boycotts as expressive acts, part of their rights

as Americans.

Boycotts have been a powerful tool for historically

marginalized

groups,

including

the

Jewish

community, to protest against injustice. Thus, for

example, when Adolf Hitler assumed power in

Germany and began his campaign to exterminate the

Jews, the American Jewish community organized a

boycott of Nazi-made products. Anti-Nazi boycott

leaders drew inspiration from the founding era and

invoked their constitutional rights as Americans.

Boycotters across other eras similarly invoked their

constitutional rights to protest slavery, apartheid,

and racial injustice.

With scant analysis of this Court’s precedents and

no acknowledgment of this history, the court of

appeals deemed boycotts beyond First Amendment

protection. Under this view, the mass boycotts of Nazi

Germany were matters of legislative grace rather

than constitutional right. The boycotts of the civil

rights movement would have been unprotected by the

Constitution. Governments would be free to choose

which political views they favor and which they do

not.

Carving out exceptions to the First Amendment’s

protections imperils the Jewish community. Some

Jews support the BDS movement, while others oppose

it. The choices about which political movements to

support are ones that should be subject to debate and

persuasion, not government coercion. If it is allowed

to stand, the court of appeals’ decision will weaken the

First Amendment freedoms on which all Americans,

including American Jews, depend. Thus, amici urge

this Court to review and reverse the dangerous

precedent set below.

ARGUMENT

I. FROM THE AMERICAN REVOLUTION TO

THE PRESENT, AMERICANS HAVE INVOKED

THEIR RIGHT TO BOYCOTT TO EXPRESS

DISAGREEMENT

WITH

GOVERNMENT

POLICIES.

A. The Boycott in Early America

America was founded with a boycott. In the decade

leading up to the Declaration of Independence,

colonists used non-importation agreements to boycott

British goods in a powerful expression of their anger

at British taxation laws. Colonial leaders secured

commitments from merchants and consumers not to

import or purchase listed products from Britain.

In Virginia, for example, signatories to the 1769

Nonimportation Resolutions promised to boycott a

long list of products from Britain “unless the

[challenged] Acts of Parliament are repealed.”

Virginia Nonimportation Resolutions (May 17, 1769),

Founders

Online,

National

Archives,

https://perma.cc/HY75-QCRN. Inspired by similar

agreements in the northern colonies, George Mason

drafted and George Washington introduced the

agreement, which many Virginia leaders, including

Thomas Jefferson, signed.

Nonimportation agreements spread throughout

the colonies. See, e.g., Glenn Curtis Smith, An Era of

Non-Importation Associations, 1768-73, 20 Wm. &

Mary Q. 84, 93 (1940). Richard Henry Lee, another

signatory to the Virginia resolutions, celebrated the

effort: “The flame of liberty burns bright and clear ...

Americans, from one end of the Continent to the

other, appear too wise, too brave, and much too

honest, to be either talked, terrified, or bribed from

the assertion of just, equitable, and long possessed

rights.” Letter from Richard Henry Lee to Arthur Lee

(May 19, 1769), in The Letters of Richard Henry Lee

Vol. 1: 1762-1778, at 34 (James Curtis Ballagh ed.,

1911), https://perma.cc/B7WD-CAKS.

By the time the First Continental Congress met,

boycotting British goods was a familiar mode of

discourse. One of the Congress’s first acts was

adopting a colony-wide boycott of various British

goods. Resolution of September 22, 1774, U.S.

Continental Congress, Charles Thomson &

Continental Congress Broadside Collection, Library

of Congress, https://perma.cc/P3V2-WAJL; Extracts

from the Votes and Proceedings, Oct. 20, 1774, U.S.

Continental

Congress,

Peyton

Randolph

Continental Congress Broadside Collection, Library

of Congress, https://perma.cc/6UUH-HD44.

Thus, the founding generation understood the

boycott as a political and expressive act. Indeed, this

collective action to express political grievance helped

forge a distinctive American political identity

separate from that of individual colonies. See, e.g.,

Lucius S. Landreth, A Hundred and Ten Years of the

Constitution, 38 Am. L. Registry 417, 423 (1899). The

boycott was a highly effective form of mass political

mobilization, and a uniquely American one at that:

“[T]he American Revolution was the first large-scale

political movement in recorded history to organize

itself around the relation of ordinary people to

manufactured consumer goods.” T.H. Breen, The

Marketplace of Revolution: How Consumer Politics

Shaped American Independence, at XVIII (2005).

“The founding generation not only viewed

nonimportation boycotts as legal, but also as the

exercise of an ‘undeniable constitutional right’ under

both English and colonial law.” Matthew C.

Porterfield, State and Local Foreign Policy Initiatives

and Free Speech: The First Amendment as an

Instrument of Federalism, 35 Stan. J. Int’l L. 1, 30

(1999) (citations omitted). “Those who founded our

nation and ratified our Constitution believed their

boycott activities against the British were lawful, and

would be shocked by the notion that the Bill of Rights

did not safeguard the type of assembly and petition

for redress of grievances they had used themselves.”

Note, Boycotting a Boycott: A First Amendment

Analysis of Nationwide Anti-Boycott Legislation, 70

Rutgers U.L. Rev. 1301, 1311 (2018).

In the decades following the Constitution’s

ratification, Americans again turned to the boycott to

express their disapproval, this time of slavery. A

prominent abolitionist, Benjamin Franklin had long

spoken out in favor of purchasing products tied to paid

labor rather than slavery. He became president of the

nation’s first abolition society, which adopted a

boycott of slave-made products at its 1797 convention.

Julie L. Holcomb, Moral Commerce: Quakers and the

Transatlantic Boycott of the Slave Labor Economy 65

(2016); Edward Raymond Turner, The First Abolition

Society in the United States, 36 Pa. Mag. Hist. &

Biography 92, 95, 103-104 (1912). Abolitionists

continued to organize abstention from products

tainted by slavery as part of their protest against the

institution. See generally Carol Faulkner, The Root of

the Evil: Free Produce and Radical Antislavery, 18201860, 27 J. Early Republic 377 (2007).

Just as during the country’s founding, participants

again understood their boycott as a political and

expressive act. See Lawrence B. Glickman, Buying

Power: A History of Consumer Activism in America 62

(2009). And the boycott provided a mode of expression

that was particularly empowering for those

Americans, such as women, who were otherwise

excluded from political power. Angelina Grimké of the

Philadelphia Female Anti-Slavery Society argued

that a woman must “do all that she can by her voice,

and her pen, and her purse, and the influence of her

example” to abolish slavery, a position ratified by the

Anti-Slavery Convention of American Women. See Ira

V. Brown, “Am I Not a Woman and a Sister?” The

Anti-Slavery Convention of American Women, 18371839, 50 Pa. Hist.: J. Mid-Atl. Stud. 1, 5-6 (1983).

These early boycotts established boycotting as an

expressive and political act and set the tone for

American protests in the generations that followed.

B. Americans Boycott Nazi Germany

One hundred years later, Americans drew

inspiration from these precedents and launched a

widespread boycott of Nazi Germany. Immediately

after Hitler took power, American Jewish leaders

urged Jews and non-Jews alike to boycott products

from Nazi Germany. By 1939, sixty-five percent of

Americans, across all faiths and political

perspectives, had joined the anti-Nazi boycott. Moshe

R. Gottlieb, American Anti-Nazi Resistance, 19331941: An Historical Analysis 262 (1982) (hereinafter

Gottlieb, Anti-Nazi Resistance).

Anti-Nazi boycotters understood their action as

connected to American history and the Constitution.

As one leader of the anti-Nazi boycott declared, “The

[boycott] movement is in the oldest American

tradition.” Moshe R. Gottlieb, The Anti-Nazi Boycott

Movement in the United States: An Ideological and

Sociological Appreciation, 35 Jewish Soc. Stud. 198,

221 (1973) (quoting American Jewish Congress

Bulletin, Jan. 13, 1939, at 1). “Long before the word

boycott was used, our forefathers made great

sacrifices in enforcing a general embargo against

trade with Great Britain.” Id. Although a formal,

government-enforced embargo would have implicated

politics and international relations, boycott

organizers urged that critics “cannot effectively

attack a private boycott, or deny the constitutional

right of Americans to buy where and what they

choose.” Gottlieb, Anti-Nazi Resistance, at 300 (citing

Records of the Joint Boycott Council, Anti-Nazi Week

folder (1938)).

Leaders viewed the boycott as the most effective

means for ordinary Americans to protest Nazi policy. 2

2 Nazi reactions suggest this was correct. Nazi propagandist

Joseph Goebbels complained that the boycott forced the Nazi

regime’s campaign against Jews to halt briefly, writing that the

regime could “undertake[] nothing more against the Jews ...

since further boycotts, foreign exchange difficulties and other

troubles are thereby threatened.” Moshe Gottlieb, In the Shadow

(cont’d)

Samuel Untermyer, a boycott leader, emphasized

that the boycott extended to people from all faiths,

who participated as part of “their right to full

expression of grievances against Nazi Germany.”

Boycott Fight to Finish, Wise Insists at Geneva,

Jewish Daily Bulletin, Aug. 22, 1934, at 1,

https://perma.cc/S3PV-E6R7. “The answer of liberal

and humane America to the war of extermination now

decreed by the madman[] now in control of Germany,

will express itself in an intensification and extension

of the boycott.” $500,000 Sought for Nazi Boycott,

N.Y. Times, Sept. 11, 1933, at 8 (quoting Untermyer).

Rabbi Stephen Wise wrote that the boycott “recorded

civilization’s protest against Nazi Germany.” Stephen

Samuel Wise, Challenging Years 261 (1949). Boycott

Committee Chair Joseph Tenenbaum praised the “the

moral expression of condemnation of Hitlerism, as

exemplified in the boycott.” AJC Calls for Vigilantes

Body to Aid Boycott, Jewish Daily Bulletin, June 22,

1934, at 2, https://perma.cc/2EU2-NRSZ.

Nazis, meanwhile, lamented the American right to

boycott. Hitler found it “unbearable” that “it should

be possible in some countries for some ideological

reason or other to let loose a wild boycott of agitation

against other countries and their goods.” Gottlieb,

Shadow of War, at 161. And Nazi sympathizers in the

United States argued unsuccessfully that the boycott

of War: The American Anti-Nazi Boycott Movement in 1939–

1941, 62 Am. Jewish Hist. Q. 146, 160 (1972) (hereinafter

Gottlieb, Shadow of War) (quoting N.Y. Sun, Feb 28, 1935).

should be illegal. See Justice Department Denies

Aiding Nazis, N.Y. Times, June 2, 1934, at 9.

Instead, U.S. leaders praised the boycott as a way

to renounce Hitlerism. Justice Brandeis wrote:

“[Hitler’s] weakness because of the absence of a

market [due to the boycott] is Jewry’s and the world’s

hope.” Wise, supra, at 239-40 (quoting private letter).

Former Deputy Attorney General and World War I

General John V. Clinnin declared, “It is proper for all

liberty loving humanitarians in all countries of the

world to show resentment against Hitlerism.... Our

only means of showing resentment is the boycott, an

economic lesson to be brought home to the German

government.” Boycott Only Weapon to Fight Nazi

Intolerance, General Clinnin Declares, Jewish Daily

Bulletin, Sept. 12, 1933, at 2, https://perma.cc/8M9CQ52G; see also The Jew Must Battle Hitlerism

Standing Up, Declares Golden, Jewish Daily Bulletin,

July 13, 1934, at 7, https://perma.cc/WXV6-QZPZ

(quoting Judge Isadore M. Golden, vice president of

the Constitution B’nai B’rith Grand Lodge, stating in

support of the boycott: “The cry of ‘hush-hush’ will

never win Jewry’s battles. No people fighting for its

rights can ever hope to succeed by soft pedaling.”).

C. Civil Rights Boycotts

Leaders from other minority groups also naturally

turned to the American boycott tradition in their

pursuit of justice, which led to some of the Nation’s

most famous and effective boycotts to advance equal

justice under the law.

1. Montgomery Bus Boycott

Inspired by Rosa Parks’s stand against racial

segregation, civil rights leaders including Rev. Martin

Luther King, Jr., organized a boycott of the

Montgomery, Alabama bus system in 1955. 3 Upon

hearing of Ms. Parks’s arrest, Rev. King “agreed at

once that some protest was necessary, and that the

boycott method would be an effective one.” Martin

Luther King, Jr., Stride Toward Freedom: The

Montgomery Story 32 (1958). King celebrated that the

Constitution was on the side of the boycotters: “One

of the great glories of democracy is the right to protest

for right.” Id. at 50.

For 13 months, Black residents refused to ride the

bus, aiming not “to put the bus company out of

business, but to put justice in business.” Id. at 39. The

boycott ended when transit segregation did. Some

boycotters also sued, which led to the overruling of

Plessy v. Ferguson’s “separate but equal” doctrine.

Gayle v. Browder, 352 U.S. 903 (1956), aff’ing 142 F.

Supp. 707, 717 (M.D. Ala.). A few years later, this

Court wrote that it was “doubtful ... that an organized

refusal to ride on Montgomery’s buses in protest

against a policy of racial segregation might, without

more, in some circumstances violate a valid state

3 Although this boycott is perhaps the most famous, it was

not unique. Black southerners used boycotts to protest

segregated public transportation for decades. See, e.g., August

Meier & Elliott Rudwick, The Boycott Movement Against Jim

Crow Streetcars in the South, 1900-1906, 55 J. Am. Hist. 756

(1969).

law.” NAACP v. Alabama ex rel. Flowers, 377 U.S.

288, 307 (1964).

2. Divestment from South Africa

Civil rights advocates did not limit their boycotts

to protesting injustice in the United States. When

South Africa entrenched its system of racial

apartheid, advocates around the world began an

organized boycott of the nation. See Cecelie Counts,

Divestment Was Just One Weapon in Battle Against

Apartheid,

N.Y.

Times,

Jan.

27,

2013,

https://perma.cc/PWK3-BE6Q.

Americans again energetically exercised their

right to boycott. About half of Americans supported

boycotting South Africa. Donald R. Culverson, The

Politics of the Anti-Apartheid Movement in the United

States, 1969-1986, 111 Pol. Sci. Q. 127, 146 (1996).

Student activists persuaded universities around the

United States to divest from South Africa. Stephen

Kaufman, Pressure to End Apartheid Began at Grass

Roots in U.S., U.S. Mission to Int’l Orgs. in Geneva

(Dec. 17, 2013), https://perma.cc/W2V2-GZKP.

President Obama described joining the antiapartheid movement as his “first act of political

activism.” David Jackson, Obama Inspired by AntiApartheid Campaign, USA Today (Dec. 6, 2013),

https://perma.cc/5ZPH-UBGR. Hundreds of large

companies withdrew business from South Africa.

Richard Knight, Sanctions, Disinvestment, and U.S.

Corporations in South Africa, in Sanctioning

Apartheid 67, 67 (Robert E. Edgar ed., 1990),

https://perma.cc/WPB4-5KGU. Artists, musicians,

and athletes refused to visit. John M. Wilson, Conflict

of Conscience: A Cultural Boycott of South Africa is

Forcing Entertainers to Make Hard—and Expensive—

Moral Choices, L.A. Times, Feb. 24, 1985, at U1.

Apartheid finally fell, thanks in part to the

American boycott. Andre L. Smith, Consumer

Boycotts Versus Civil Litigation: A Rudimentary

Efficiency Analysis, 43 How. L.J. 213, 215 (2000).

Nelson Mandela, in a visit to Washington, told

Americans, “You have no idea how your involvement

in the anti-apartheid struggle in our country actually

helped to facilitate the transformation.” Chris

Simkins, US Anti-Apartheid Movement Helped Bring

Change to South Africa, VOA News (Apr. 24, 2014,

4:39 p.m.), https://perma.cc/UA92-Q29F.

3. Claiborne County Boycott

Meanwhile, racial discrimination remained

stubbornly entrenched in the United States. Starting

in 1966, Black Mississippians organized a protest of

white-owned businesses to protest racial injustice.

See NAACP v. Claiborne Hardware Co., 458 U.S. 886,

907-08 (1982). The boycott had a significant impact,

prompting the targeted companies to sue in state

court, where they obtained tort damages for lost

earnings based on a claim of malicious interference

with business. Id. at 891-94. Boycotters argued that

“the right to boycott and inflict losses on complainants

was a legally protected right afforded them under the

laws and Constitution of the United States,” id. at 892

n.10 (quotation omitted), but the trial judge

disagreed, awarding nearly a million dollars in lost

profits to the merchants. Id. at 893. The Mississippi

upheld the imposition of liability. Id. at 894.

This Court reversed, holding that “the boycott

clearly involved constitutionally protected activity.”

Claiborne Hardware, 458 U.S. at 911, 920. The Court

left open the possibility that “a narrowly tailored

statute designed to prohibit certain forms of

anticompetitive conduct ... may restrict protected

First Amendment activity,” id. at 915 n.49, but “[t]he

right of the States to regulate economic activity could

not justify a complete prohibition against a

nonviolent, politically motivated boycott designed to

force governmental and economic change and to

effectuate rights guaranteed by the Constitution

itself.” Id. at 914. Thus, the First Amendment barred

the state from awarding damages based on the

merchants’ losses because those losses were caused by

Black citizens’ collective refusal to deal with white

merchants. Id. at 922. The Court acknowledged what

the lessons of history made clear: Politically

motivated economic boycotts were fully protected by

the First Amendment.

II. THE DECISION BELOW JEOPARDIZES THE

RIGHTS OF JEWS AND NON-JEWS ALIKE.

A. Boycotting is a Jewish Tradition as Well

as an American One

Just as “Americans have engaged in an almost

continuous series of boycotts,” Glickman, supra, at 1,

“[t]hroughout history Jews have been participants in

consumer boycotts,” Monroe Friedman, Consumer

Boycotts: Effecting Change Through the Marketplace

and Media 131 (1999); see also, e.g., Paula E. Hyman,

Immigrant Women and Consumer Protest: The New

York City Kosher Meat Boycott of 1902, 70 Am. Jewish

Hist. 91, 93 (1980). Some 500 years ago, Ottoman

Jews organized an eight-month boycott of the port city

Ancona to protest the Pope’s seizure of property and

execution of two dozen Anconan Jews. See Marc

Saperstein, Martyrs, Merchants and Rabbis: Jewish

Communal Conflict as Reflected in the Responsa on

the Boycott of Ancona, 43 Jewish Soc. Stud. 215

(1981). During the 1970s, Jews organized boycotts of

Mexico and France to voice disapproval of Mexico’s

support of an anti-Zionism resolution and France’s

release of a Palestinian prisoner. Friedman, supra, at

138-142.

As Americans have exercised their right to

boycott, American Jewish voices have been part of the

chorus. Jewish leaders organized the boycott of Nazi

Germany. See supra at 8-11. And Jewish groups

around the country supported the Montgomery bus

boycott by raising funds and expressing solidarity.

E.g., Clevelanders Rally Behind Bus Boycotters,

Cleveland Call & Post, Mar. 17, 1956, at 1B (noting

Jewish Community Foundation donated funds and

Rabbi Rosenthal spoke in support at rally).

Jewish groups also joined the boycott of South

Africa. Brandeis University Chaplain Rabbi Albert

Axelrad maintained, “Judaism’s teaching on the

matter [of divestment] are lucidly clear.” Marjorie N.

Feld, Nations Divided: American Jews and the

Struggle over Apartheid 112 (2014). Thus, he argued

“[i]t is both morally and educationally inappropriate

for a university, especially ours, rooted as it is in the

history and values of the Jewish people, to accept

funding which accrues from such an atrocious system,

thereby participating in propping it up and

perpetuating it.” Id. Others agreed. The Union of

American Hebrew Congregations developed a manual

to help both congregations and individuals participate

in the “no-buy” campaigns. UAHC Steps Up AntiApartheid Campaign, Jewish Telegraphic Agency,

Oct.

15,

1986,

https://perma.cc/QX2T-FX6V.

Ultimately, “[n]early every major Jewish organization

issued statements in support” of divestment from

South Africa. Feld, supra, at 118.

And Jewish groups stood with the NAACP after it

was fined for the Claiborne County boycott,

recognizing that restrictions on boycotts threaten

Jewish rights. Rabbi Alexander M. Schindler,

president of the Union of American Hebrew

Congregations, decried the Mississippi trial court

decision as “constitutionally dubious and a threat to

every organization actively engaged in the fight for

social justice.” Major Synagogue, Church Groups

Launch Drive to Aid NAACP Appeal, Jewish

Telegraphic Agency, Oct. 14, 1976, at 2,

https://perma.cc/4YB7-M6HU.

Rabbi

Schindler

immediately perceived the decision’s potential

implications for the Jewish community: “If Blacks can

be thrown into bankruptcy for refusing to patronize

merchants they regard as hostile to their interests,

then Jews can be similarly victimized for

withdrawing their patronage from concerns which

discriminate against them or who cooperate with the

Arab boycott ....” Id. The Executive Director of the

American Jewish Congress echoed these concerns,

writing a letter of support to the NAACP: “We believe

that precedents established in such a decision are

extremely dangerous not merely to the NAACP but to

all groups involved in using social action to protect

constitutional rights and to achieve social change.”

Jewish Groups Aiding NAACP, Jewish Telegraphic

Agency, Oct. 8, 1976, at 4, https://perma.cc/FTH59XFS.

As a result, Jewish groups helped raise thousands

of dollars for the NAACP so it could appeal the

decision. Id. When the case reached this Court, the

American Jewish Congress wrote an amicus brief in

support: “[P]olitically motivated economic boycotts

have a long and honored history in America.” Br. of

Amicus Curiae American Jewish Congress 9, NAACP

v. Claiborne Hardware Co., No. 81-202, 1981 WL

390216 (1981). The Congress thought it settled law

that “boycotts which have ‘important economic, social,

and political’ purposes constitute an exercise of basic

constitutional rights which have always rested on the

highest rung of the hierarchy of First Amendment

values.” Id. at 12 (citations, internal quotation marks,

and alterations omitted).

B. The Decision Below Ignores the Past and

Threatens the Present of American, and

Jewish, Boycotts

With scant analysis, the decision below brushed

aside Claiborne Hardware and the long American

history of boycotting, contending that this Court had

“stopped short of declaring that a ‘boycott’ itself—that

is, the refusal to purchase from a business—is

protected by the First Amendment.” Ark. Times LP v.

Waldrip as Tr. of Univ. of Ark. Bd. of Trs., 37 F.4th

1386, 1392 (8th Cir. 2022) (citing Claiborne

Hardware, 458 U.S at 913). The decision then treated

collective, organized, politically motivated boycotts

directed at changing public policy as simply “nonexpressive commercial decisions” beyond the First

Amendment’s protection. 4 As discussed more fully in

the Petition, the court’s analysis conflicts with

Claiborne Hardware and other First Amendment

principles.

The decision also cannot be reconciled with

history. The Eighth Circuit’s decision would have

allowed states to criminalize or otherwise punish

participation in boycotts, including the boycott of Nazi

Germany and divestment from South African

apartheid, which American Jews have exercised their

rights to lead and join. See also Flowers, 377 U.S. at

307 (finding it “doubtful ... that an organized refusal

to ride on Montgomery’s buses in protest against a

policy of racial segregation might, without more, in

some circumstances violate a valid state law”).

These concerns are not speculative: Several laws

passed to penalize participation in the BDS

movement are worded broadly enough to apply to the

anti-Nazi and anti-apartheid movements. Although

Arkansas’s law is targeted specifically at the antiIsrael viewpoint, anti-BDS laws in other states

penalize Americans who participate in a boycott of

any “jurisdiction with which this state can enjoy open

4 Treating participation in the BDS movement as a “nonexpressive commercial decision[]” is particularly disingenuous

when one considers that many anti-BDS laws expressly permit

boycotts motivated by economic or business purposes, penalizing

only those that are motivated by political concerns. E.g., Tex.

Gov. Code § 808.001(1) (exempting “action[s] made for ordinary

business purposes”).

trade.” Ala. Code § 41-16-5(a)(1); accord, e.g., Ky. Rev.

Stat. § 45A.607 (similar); Ohio Rev. Code § 9.76 (B)

(similar); S.C. Code § 11-35-5300(A) (similar). Those

Americans who boycotted Nazi Germany before

America entered World War II and those who

divested from South Africa during its apartheid years

would run afoul of these modern anti-BDS laws,

ratified by the decision below.

Americans, both Jewish and non-Jewish, continue

to engage energetically in boycotts as an expression of

their moral, political, and social ideals. A quarter of

Americans are currently engaged in at least one

boycott. See Chris Taylor, Boycott Nation: How

Americans Are Boycotting Companies Now, Reuters

(June 29, 2022), https://perma.cc/5QDW-DNYT.

These boycotts are conducted in support of many

causes across the political and ideological spectrum,

including to protest antisemitism. See, e.g., Shirley

Halperin, UTA Chief Jeremy Zimmer Implores

Agents: ‘Please Support the Boycott of Kanye West’,

Variety (Oct. 23, 2022), https://perma.cc/T7UY7QZW.

Some in the Jewish community have also

organized boycotts of BDS participants. E.g., Boycott

‘Antisemitic’ Ben & Jerry’s, Says Simon Wiesenthal

Center,

The

(Oct.

21,

2021),

https://perma.cc/XCS7-DPRN. Under the decision

below,

this

anti-BDS

counter-boycott

isn’t

constitutionally protected counter-speech, but rather

could itself be outlawed.

More broadly, the decision below would allow

governments to pick and choose which viewpoints to

allow and which to penalize, even criminalize. States

would have license to elevate the interests of any

foreign nation—or any other political position—over

the rights of Americans, including Jews. The First

Amendment cannot be so easily brushed aside.

States have already been emboldened to suppress

boycotts motivated by ideologies that they do not

share. Several states now penalize companies that

boycott fossil fuel energy companies or firearm

entities. E.g., Tex. Sess. L. Serv. Ch. 529-530 (west),

to be codified at Tex. Gov’t Code § 2274.001 et seq.;

Ky. Rev. Stat. § 41.480; W. Va. Code §§ 12-1C-1 to -7;

Wyo. Stat. § 13-10-302. See Anti-Boycott Legislation

Tracker, JustVision, https://justvision.org/boycott/

legislation-tracker (last visited Nov. 4, 2022). Other

states may prohibit other boycotts from across the

political and ideological spectrum. The decision below

gives government free rein to dictate to Americans

which ideologies are tolerated and which are not, a

result incompatible with the First Amendment.

C. The Claim that Political Speech is

Motivated by Antisemitism Is Not Itself

Grounds for Bringing it Beyond First

Amendment Protection

Some amici below argued that the usual First

Amendment analysis should be short circuited

because, in their view, the BDS movement is

antisemitic. See Br. of Amicus Curiae Shurat HadinIsrael Law Center, Arkansas Times v. Waldrip, No.

19-1378 (8th Cir.), 2019 WL 2526775; Br. of Amicus

Curiae Zachor Legal Institute, Arkansas Times v.

Waldrip, No. 19-1378 (8th Cir.), 2021 WL 1603980.

This is incorrect.

To begin, there is no allegation or suggestion that

the Arkansas Times is motivated by antisemitism.

And amici do not accept that the BDS movement is

inherently antisemitic. Anti-BDS arguments that rely

on fallacious grounds of antisemitism make it harder

to counter the very real antisemitism faced by the

Jewish community at home and abroad.

The most widely accepted definitions of

antisemitism reject the notion that criticism of

Israel’s policies is inherently antisemitic. See The

Working Definition of Antisemitism, International

Holocaust

Remembrance

Alliance,

https://perma.cc/L6Q9-9FVP (last visited Nov. 17,

2022); The Jerusalem Declaration on Antisemitism,

https://perma.cc/NUT9-2ZE4 (last visited Nov. 17,

2022). In fact, treating Israel and Jews as

interchangeable is itself a form of antisemitism. See

Jerusalem Declaration, Guideline B. 5

Indeed, the Jewish community itself is divided on

the merits of the BDS movement. U.S. Jews’

Connections with and Attitudes Toward Israel, Pew

5 Some BDS supporters have advanced antisemitic rhetoric,

but that does not infect the entire movement. Again Claiborne

Hardware is instructive: “A court must be wary of a claim that

the true color of a forest is better revealed by reptiles hidden in

the weeds than by the foliage of countless freestanding trees.”

458 U.S. at 934.

Research

Center

(May

11,

2021),

https://perma.cc/RPS5-JFVC. This is unsurprising:

There was no uniform Jewish view on the merits of

earlier boycotts either. Leadership of the American

Jewish Committee, for example, which opposes BDS,

also refused to endorse anti-Nazi boycotts, believing

them to be strategically unwise and to jeopardize “an

understanding between Nazi authorities and the

Jewish population of Germany.” American Jewish

Committee, The Anti-German Boycott: A Statement of

the Position of the American Jewish Committee 2

(1935). Avoiding direct conflict, the Committee

preferred to “rely upon the moral forces of America

and of other enlightened countries in the world” to

combat Hitler’s evil. Moshe R. Gottlieb, The First of

April Boycott and the Reaction of the American Jewish

Community, 57 Am. Jewish Hist. Q. 516, 555 (1968)

(quoting Draft American Jewish Committee

Statement). Yet these disagreements led to debate

within the Jewish community, not suppression;

neither side of the debate seriously questioned that

anti-Nazi boycotters had the legal right to protest.

Moreover, the notion that the Arkansas law seeks

to protect the Jewish community is belied by its

history. The Arkansas legislator who sponsored the

law challenged here was not driven by concern for

Arkansas Jews. Arkansas Senate Majority Leader

Bart Hester readily conceded that he “ha[d]n’t spoken

to leadership in the Jewish community” and that he

“didn’t need the local [Jews’] opinion on this.” Boycott

at 26:54-27:05 (Just Vision 2021). Rabbi Barry Block,

who leads Arkansas’s largest synagogue, opposes both

the BDS movement and the anti-BDS law,

emphasizing the law “has nothing to do with the

Jewish people of Arkansas.” Jeremy Ben-Ami & Jill

Jacobs, Americans Shouldn’t Forfeit Their Freedom of

Speech So States Can Support Israel, NBC News (Jan.

15, 2020), https://perma.cc/5A5Z-8TB7; see also

Boycott at 25:46-26:20 (quoting Rabbi Block:

“Supporting Israel is of the greatest importance to me.

I could not be stronger in my opposition to boycotts of

any Israeli products. However, I was appalled that a

newspaper would have to sign an oath that it wouldn’t

participate in any kind of political action. American

freedoms are terribly important to American Jews.”).

Amici also reject the suggestion, raised by the

State’s amici below, that boycotting a nation based on

objection to its policies is analogous to discrimination

against individuals based on their religion or national

origin. See Br. of Amici Curiae States of Arizona et al.

4-6, Ark. Times v. Waldrip, No. 19-1378 (8th Cir.),

2021 WL 1499712. This view denigrates the real

harm that invidious discrimination inflicts on

marginalized individuals, including Jews.

Similar arguments were made by Nazi

propagandists, who equated the anti-Nazi boycott

with discrimination against German-Americans.

Boycotters rejected these claims: “We desire here

again to emphasize that we have no quarrel with our

American citizens of German birth or ancestry. Our

movement is not directed against any class of people;

it is aimed only at German goods, ships and shipping.”

Samuel Untermyer, To Our Patriotic GermanAmerican Citizens, Jewish Daily Bulletin, May 15,

1934, at 15.

Were legislatures truly concerned about

antisemitism, they would pass laws forbidding

contractors from engaging in that discrimination.

Arkansas, for example, already has such a law for

contractor employment. Ark. Code § 25-17-101. But

the anti-BDS law does not prohibit discrimination

against individuals based on religion or national

origin; instead, it penalizes political expression

disfavored by the State.6

Similarly, the mere claim that someone’s

expressive conduct is motivated by antisemitism,

racial animus, or other hateful motive is not a basis

for the State to deny their speech rights. Advocates

who believe someone’s views are misguided should

challenge them directly, not enlist the power of the

State to silence them.

D. A Robust First Amendment Protects the

Jewish Community and Other Minority

Groups

Carving out exceptions to the First Amendment’s

protections imperils the Jewish community.

In a 1790 letter to a Rhode Island Hebrew

congregation, President George Washington wrote

that “the Government of the United States ... gives to

bigotry no sanction, to persecution no assistance.”

From George Washington to the Hebrew Congregation

6 As noted above, see supra at 19 n.4, several states expressly

permit boycotting for business or economic reasons and punish

the boycott only if it is expressive.

in Newport, Rhode Island, 18 August 1790, Founders

Online, National Archives, https://perma.cc/XM7VSLTX. That promise of religious freedom drew many

Jewish immigrants to America’s shores. Of course, for

Jews and other marginalized groups, America has not

always lived up to that promise.

But whatever prejudices government officials may

harbor, the Constitution constrains their ability to act

on them. “If American Jews have attained an

unprecedented measure of security and success in

America, one major reason is the majestic sweep of

the Constitution and the Bill of Rights.” Albert

Vorspan & David Saperstein, Tough Choices: Jewish

Perspectives on Social Justice 40 (1992); see also

Aryeh Neier, Defending My Enemy 7 (1979) (“It is

dangerous to let the Nazis have their say. But it is

more dangerous by far to destroy the laws that deny

anyone the power to silence Jews if Jews should need

to cry out to each other and to the world for succor....

When the time comes for Jews to speak, to publish,

and to march in behalf of their own safety, [states]

and the United States must not be allowed to

interfere.”).

Just as Jewish groups fought against attacks on

the right to boycott in Claiborne Hardware, see supra

at 17-18, amici ask this Court not to let the dangerous

precedent below stand. This Court should grant the

petition and ensure that these essential First

Amendment freedoms are not eroded.

CONCLUSION

For the foregoing reasons, amici respectfully urge

this Court to grant the petition.

Respectfully submitted,

November 18, 2022

Joseph W. Mead

Counsel of Record

Elizabeth R. Cruikshank

Mary B. McCord

INSTITUTE FOR CONSTITUTIONAL

ADVOCACY AND PROTECTION

GEORGETOWN UNIVERSITY LAW

CENTER

600 New Jersey Ave., N.W.

Washington, DC 20001

(202) 662-9765

jm3468@georgetown.edu

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