first amendment

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As Anti-BDS Bills Become the Norm, ACLU Takes Free Speech Fight to the Supreme Court

Published by Anonymous (not verified) on Fri, 08/07/2022 - 1:34am in

Little Rock, Arkansas — In June, a federal appeals court upheld an Arkansas law barring state contractors from boycotting Israel, sparking concerns over First Amendment rights in the United States.

The Eighth Circuit Court of Appeals reversed a decision made last year by a panel of three judges who found that mandating a pledge to not boycott Israel is unconstitutional.

However, the recent court ruling determined boycotts are not expressive conduct and instead related to commercial activity and therefore the state can regulate such actions.

“It only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes, who was appointed by former President Donald Trump, wrote in the court’s opinion. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

“By declaring Arkansas’ Anti-BDS Law to be constitutional, the court has tacitly endorsed a Palestine-exception to the First Amendment,” Council on American Islamic Relations (CAIR) National Litigation Director, Lena Masri, said in a statement.

In 2018, The Arkansas Times sued the state over its Israel boycott law after refusing to sign the pledge. Originally, Arkansas Times publisher Alan Leveritt lost in District Court but won when he appealed to the Eighth Circuit Court. The state then appealed to the full appeals court and was granted a rehearing.

The American Civil Liberties Union, which represented The Arkansas Times, confirmed it plans to appeal to the Supreme Court. Brian Hauss, the ACLU’s chief litigator on the case, said in a statement that the court’s decision “misreads Supreme Court precedent and departs from this nation’s longstanding traditions.” “It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since,” Hauss said.

Leveritt, who is not participating in a boycott of Israel, told MintPress News that, as a matter of free speech, he wouldn’t sign the pledge.

“No media protected by the First Amendment in this country should take a political position in return for advertising,” Leveritt said. “This is America. The government doesn’t dictate to us  what we say and do and think, so that’s why we’re fighting it.”

A clause in the law mandates contractors who do not sign the pledge must then reduce their fees by 20%, which Leveritt said has severely hurt the publication’s finances.

 

Israeli government influencing US laws

Bills targeting the Palestinian-led Boycott, Divestment and Sanctions movement have spiked in recent years, according to Palestine Legal, an organization protecting the rights of pro-Palestine activists.

As detailed in the documentary, “Boycott”, the Israeli Ministry of Strategic Affairs established the propaganda project, Concert, as a public benefit corporation in order to circumvent U.S. laws on foreign interference. Concert’s primary purpose is to quell growing support for the BDS movement worldwide.

Through Concert, Israel has been able to funnel millions of dollars to organizations that would then lobby for these anti-BDS bills. Christians United for Israel — one of the main advocates for pro-Israel legislation — received $1.3 million from the Israeli government. Other groups include Eagle’s Wings, Hasbara Fellowships, America-Israel Friendship League, and the Israel Allies Foundation.

 

How the Supreme Court may rule

If the Arkansas case does reach the Supreme Court, opponents of anti-BDS legislation like CAIR are optimistic the recent appeals court decision will be overturned.

“We realized the Supreme Court is not always a friend of civil rights, but the Eighth Circuit is very conservative, far more conservative than the Supreme Court even,” Justin Sadowsky, trial attorney with CAIR, said. “We’re very hopeful that the Supreme Court, which has often been champions of the First Amendment, will take a more nuanced look at it.”

CAIR’s deputy executive director, Edward Ahmed Mitchell, agreed with this sentiment. He noted that most of the Supreme Court justices take an originalist approach when interpreting the law, meaning they consider the original text of the constitution and apply it to modern scenarios.

“If they really look at what the constitution says — the plain meaning of it — and then also the history of it as originalists tend to do, then they have to rule that these laws are an unconstitutional violation of the free speech of the American people,” Mitchell told MintPress News.

Yet Alison Weir, founder and executive director of the independent research institute, If Americans Knew, outlined the Supreme Court’s pro-Israel influences – something that could lead to a less favorable ruling.

Weir explained in a recent article how the Supreme Court has a history of handing down decisions related to Israel that have changed longstanding American traditions.

These included a 1967 ruling which sided with an Israeli citizen and overturned a ban on dual citizenship and a decision in 1998 that handed the Israel lobby’s flagship organization, the American Israel Public Affairs Committee, a victory over allegations the group violated federal election laws.

These decisions can be attributed to Israel partisans on the court like former Justices Abe Fortas and Stephen Breyer. Today, the court is still packed with Israel loyalists. Kentanji Brown Jackson, Amy Coney Barrett, and Brett Kavanaugh all have pro-Israel influences hidden in their education and career beginnings. Weir surmised Justice Elena Kagan may also pose a potential problem, given her love for Israel and her admiration for the country’s former Supreme Court president, Aharon Barak.

 

Setting a ‘dangerous precedent’

Other versions of the boycott law have passed in 33 states since 2016. Several Americans have challenged these laws in recent years — in Texas, Georgia, Arizona, and Kansas — suing their states for violating their First Amendment rights and winning. But Arkansas is an outlier. Leveritt fears that if he loses in the Supreme Court, this could overturn favorable rulings in lower courts as well.

But it is not just Israel boycotts that are under threat. Boycotts, in general, appear to be at risk in the U.S. “In upholding Arkansas’ anti-BDS law, the court refused to confront the reality that these laws are part of an effort to shield Israel from accountability,” Palestine Legal said in a statement. “Given the proliferation of anti-boycott laws targeting other social justice movements, this decision sets a dangerous precedent for anyone interested in seeking social, political, or economic change.”

The American Legislative Exchange Council (ALEC), which has been instrumental in passing anti-BDS laws across the country, is now targeting financial firms for divesting from the fossil fuel industry.

The group works with corporate lobbyists and Republican state legislators to author legislation. In 2021, ALEC drafted the Energy Discrimination Elimination Act, requiring companies of 10 or more full-time employees to provide written verification it doesn’t boycott fossil fuel businesses before entering into a government contract. So far, Oklahoma, North Dakota, and Texas have signed similar legislation into law. Texas has also passed legislation prohibiting contracts with companies that boycott the firearms industry. ALEC is funded primarily by Koch Industries and a host of other energy and utility companies.

Other states are also using the anti-boycott model to target politically-charged industries. Alaska, Arizona, Idaho, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Utah, West Virginia and Wisconsin all have drafted anti-BDS legislation.

Julia Bacha, director of the documentary “Boycott”, described the rapid trajectory of anti-BDS legislation in the U.S. in a Twitter thread following the Eighth Circuit Court ruling. “When we started production, the risk that the anti-BDS bill would be used as a template was still theoretical. By the time we locked-picture, it was a reality,” she wrote.

But she also cautions Americans to not solely pin the blame on Republicans over anti-BDS bills becoming the norm, writing,

Beware of press coverage that points the finger at Republicans for stripping away our rights without recognizing that Democrats were complicit in opening the pandora’s box when they overwhelmingly supported anti-BDS bills. There’s no First Amendment Exception to Palestine and this is as good [sic] time as any for the Democratic Party to learn this lesson, before irreparable damage to our rights in America is done.”

Thus, if certain pro-Israel and pro-fossil fuel advocates get their way, a fundamental right to protest will be removed from Americans.

Feature photo | Graphic by MintPress News

Jessica Buxbaum is a Jerusalem-based journalist for MintPress News covering Palestine, Israel, and Syria. Her work has been featured in Middle East Eye, The New Arab and Gulf News.

The post As Anti-BDS Bills Become the Norm, ACLU Takes Free Speech Fight to the Supreme Court appeared first on MintPress News.

Ad Nauseum: Addressing America’s Advertising Problem

Published by Anonymous (not verified) on Fri, 24/06/2022 - 12:41am in
by Haley Mullins

One of the biggest roadblocks to achieving a steady state economy is advertising. While seemingly innovative solutions to consume conscientiously are becoming more prevalent, most people aren’t Marie Kondo-ing their way through each purchase, stopping to question whether the item in their shopping cart will “spark joy.” But how much blame can we really assign consumers when they’ve been dropped onto a hamster wheel of coupons, cash-back credit cards, and “consumer confidence” indicators?

We live in the age of the internet, where we can purchase anything with one click on Amazon. Websites track our movements and preferences as we surf the web, offering us personalized advertisements so we can discover and buy more of what interests us. To put into perspective how expansive advertising is in the USA, China is the second-largest advertising market in the world, yet its ad expenditures are estimated at less than half the amount calculated for the USA.

Advertising and Growth

Super Bowl promotions in a grocery store, featuring doritos advertising.

Super Bowl Sunday might be better named National Advertising Day. (CC BY 2.0, JeepersMedia)

In 1941, right before a baseball game between the Brooklyn Dodgers and Philadelphia Phillies, the first legal TV commercial aired in the USA. It was just ten seconds long and only cost the company nine dollars. Forty years later, the standard for prime-time TV was 9.5 minutes of ads per hour; today, it’s up to 14–17 minutes per hour. The cost of advertising has skyrocketed, too, but marketers are still willing to pay big bucks to make buyers aware of the “Next Big Thing.” In 2020, advertisers spent an average of $5.6 million for a 30-second spot in Super Bowl 54.

Firms advertise to create demand and promote consumption. (I don’t know about you, but I didn’t want socks with my cat’s face on them until I saw a Facebook ad for it.) While firms compete against each other for our business, they rally around the goal of GDP growth. Wall Street and Madison Avenue aren’t far apart—figuratively or politically—and both have skin in the growth game.

Americans have a love-hate relationship with ads though. A typical American might understand the role of advertising in economic growth, yet—apart from Super Bowl Sunday—we detest ads and go to great lengths to avoid them. By 2021, 27 percent of U.S. internet users used ad blockers on their connected devices. Younger generations are particularly put off; 48 percent of Gen Z consumers and 46 percent of Millennials prefer to pay a premium than watch advertisements on streaming video services.

First Things First

Steady staters have some significant hurdles to overcome in the degrowth of the American ad industry, the first of which is the First Amendment.

Advertising falls under the First Amendment right to free speech and free press, the most cherished of our constitutional rights. However, even the sanctity of the First Amendment doesn’t guarantee the freedom to say anything. The circumstances are important, too. Reasonable restrictions of free speech are imposed most notably when public safety is concerned. The classic example of unprotected speech is yelling “Fire!” at the movie theater when no fire exists, as the welfare of people supersedes your right to yell “Fire!”

While advertising isn’t as directly harmful as in this example, the prevalence and effects of advertising—unnecessary consumption, growth, and environmental impact—have become increasingly harmful to public welfare. Advertising restrictions already in place substantiate our cultural awareness of advertising as a danger to the public. Under the law, claims in advertisements must be truthful, and cannot be deceptive or unfair. Additionally, there are restrictions on promoting harmful products like tobacco and alcohol, as well as advertising to children, who can’t interpret ads with a critical lens.

Society understands the power of advertising and the dangers it poses when used manipulatively. Thus, it’s poor reasoning to use the First Amendment as an excuse for “anything goes” in the advertising industry. So, what policies could we enact to moderate advertising, slow consumption, and (in the process) improve wellbeing?

Ad-equate Policies

Defenders of advertising argue the importance of the practice in aiding competition, a fundamental facet of a capitalist system to keep prices low and fair. As American economist Lester Telser once described, “If sellers must identify themselves in order to remain in business, then formally unless they spend a certain minimum amount on advertising their rate of sales will be zero. Regardless of price, buyers would not know of sellers’ existence unless the sellers make themselves known by incurring these advertising outlays.”

1960 Budweiser advertisement with four Black men holding beers and chatting in a kitchen.

Advertising: framing the consumption of market goods as raising one’s quality of life. (CC BY-NC 2.0, ChowKaiDeng)

Touché, Telser. Eliminating the practice of advertising isn’t practical, as people would struggle to discover necessary goods and services. But billions of dollars are spent annually on advertising, far surpassing the optimal scale of the industry. In 2020, U.S. firms spent $240 billion on advertising; all of it tax deductible, as it’s considered a necessary business expense to generate or keep customers. Herman Daly and Joshua Farley argue for advertising taxes in Ecological Economics (Second Edition), declaring it appropriate to tax advertising as a public bad because production should meet existing demand rather than create new demands for whatever gets produced.

But if we’re truly to curb overconsumption of market goods, merely reducing the quantity of advertising will only do so much in the aggregate. To change consumer habits, an alternative to market goods must be introduced. Thus, in addition to taxation, Daly and Farley suggest making media information flows more symmetric so that the public is equally exposed to nonmarket goods as they are to market goods. Essentially, we need a sort of nonprofit advertising to balance out the advertising of firms.

Nonmarket goods, things that are neither bought nor sold directly, do not have a readily quantifiable monetary value. Some examples include visiting the beach, birdwatching, or going for a walk. Perhaps, with more attention given to nonmarket goods, consumer culture might shift to better appreciate our planet and better understand the true cost of frivolously consuming market goods that come from the Earth and return to the Earth as waste. Our resources might then be reallocated to the preservation of invaluable nonmarket goods, a shift that may aid in transitioning to a steady state.

Redefining Ethical Advertising

Cartons of cigarettes with several different warning labels making it clear that smoking is hazardous to people's health.

Full disclosure: unchecked consumption kills people and planet. (CC BY 2.0, kadavy)

The U.S. Federal Trade Commission (FTC) defines “ethical advertising” as “truthful, not deceptive, backed by evidence, and fair.” The FTC assesses the adherence of these principles through the lens of a “reasonable consumer” to determine whether an ad meets the requirements. However, some argue that the FTC has a responsibility to protect the ignorant consumer to the same extent as the reasonable one.

If the last several decades of celebrated economic growth are considered, I’d say the vast majority of consumers fall into the ignorant category—ignorant to limits to growth, at least. Is it not within the scope of ethics, then, to make the true cost of consumption for advertised market goods evident? Is it not deceptive for ads to display a price tag that fails to factor in the environmental costs of production? We have warning labels on tobacco and alcohol products that consumption may lead to adverse effects, so why aren’t we warning buyers of the consequences of consuming other goods?

If we don’t restrict the amount or reach of advertising, the least we can do is demand full-disclosure advertisements that detail the environmental cost of producing and purchasing the product. This would, at minimum, include estimated life-cycle emissions, quantity of natural resources extracted, and the energy required to produce each unit. Such disclosures would, over time, raise awareness of limits to growth and could, perhaps, be the catalyst that converts our culture of conspicuous consumption to one of careful conservation.

Haley Mullins, managing editor for CASSEHaley Mullins is the managing editor at CASSE.

The post Ad Nauseum: Addressing America’s Advertising Problem appeared first on Center for the Advancement of the Steady State Economy.