Federal Judge Brian Miller has dismissed the ACLU-backed case by the Arkansas Times challenging the state law that penalizes those that want to do business with the state unless they sign a pledge not to participate in a boycott against Israel.

Judges in other states have enjoined similar laws.  The Times sued after being told a regular advertiser — the Univesity of Arkansas’s Pulaski Tech campus — wouldn’t continue to bu7y advertising in the Times without our signing the pledge or taking a 20 percent reduction in rates. We have not participated in or editorialized on Israel boycotts, but objected to having potential editorial content dictated by the state.


Miller said he thought at first look that the law required a different result.

He said the Times had suffered injury on account of the law and had standing to sue. But he said the newspaper wasn’t likely to prevail on the question because a boycott is not protected by the First Amendment. He acknowledged his decision diverges from opinions in two other federal courts. He wrote:


Act 710 requires contractors to certify that they will not refuse to deal with Israel or with companies that do business with Israel. A boycott of Israel, as defined by Act 710, concerns a contractor’s purchasing activities with respect to Israel. While the statute also
defines a boycott to include “other actions that are intended to limit commercial relations with Israel,” this restriction does not include criticism of Act 710 or Israel, calls to boycott Israel, or other types of speech. ….

To prevail under either of its theories, the Times must demonstrate that a refusal to deal, or its purchasing decisions, fall under the First Amendment, which protects speech and inherently expressive conduct. The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not inherently expressive.

Alan Leveritt, publisher of the Times, declined to comment on the ruling until he’s talked further with lawyers about a potential appeal.  Because of other court rulings, sponsors of this law had said an amendment was likely in this legislative session. Miller’s ruling likely changes the odds of that.

Here’s the judge’s ruling.