Arkansas Times loses challenge of state’s Israeli boycott law

The 8th U.S. Circuit Court of Appeals today ruled that the state law limiting state business with those who refuse to sign a pledge not to boycott Israel is not a violation of the First Amendment.

The decision, made by the entire court, reverses a decision by a three-judge panel that the law was unconstitutional.

The Arkansas Times challenged the law, with the support of the ACLU, contending it was unconstitutional compelled speech.

In a 17-page opinion, the court sided with the defendant, the University of Arkansas Board of Trustees. They were sued because the Times faced losing advertising with the Pulaski Tech branch of the UA unless it signed the pledge or agreed to provide services at a 20 percent discount.

The summary:

Civil case - Constitutional law. Arkansas Act 710 prohibiting state 
   entities from contracting with private companies unless the contract 
   includes a certification that the company is not currently engaged in, and 
   agrees for the duration of the contract not to engage in, a boycott of 
   Israel, does not violate the First Amendment; under Arkansas's canons of 
   statutory interpretation, the court concludes the Arkansas Supreme Court 
   would read Act 710 as prohibiting purely commercial, non-expressive 
   conduct; the certification requirement concerning unprotected, 
   nondiscriminatory conduct is not unconstitutional compelled speech. Judge 
   Kelly, dissenting.

Here’s the opinion.

The entire court heard the case. It is one of the most conservative in the country and this decision departs from decisions in many other states. But in most of those cases, faced with unfavorable court decisions, states have moved to correct laws to make them more free speech compliant. Arkansas has stood firm behind its law, one of nearly three dozen such “anti-BDS (Boycott, Divestment and Sanctions)” laws passed around the country.

The court wrote, in part:

Under Arkansas’s canons of statutory interpretation, we think the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, nonexpressive conduct. It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.

As for whether the state law “compelled” speech, the court wrote:

We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech. A factual disclosure of this kind, aimed at verifying compliance with unexpressive conduct-based regulations, is not the kind of compelled speech prohibited by the First Amendment.

Justice Jane Kelly wrote in dissent:

The Act requires government contractors, as a condition of contracting with Arkansas, to agree not to engage in economic refusals to deal with Israel or to support or promote boycotts of Israel. Because the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne, see 458 U.S. at 915, it imposes a condition on government contractors that implicates their First Amendment rights.

…Supporting or promoting boycotts of Israel is constitutionally protected under Claiborne, yet the Act requires government contractors to abstain from such constitutionally protected activity. Without any explanation of how this condition seeks to “define the limits of [the State’s] spending program,” it can be viewed only as seeking to “leverage funding to regulate speech outside the contours of the program itself.”

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