The American Civil Liberties Union argued yesterday in the Eighth Circuit Court of Appeals on behalf of the Arkansas Times, which is challenging an Arkansas law conditioning government contracts on signing an oath not to boycott Israel or Israeli settlements. The Times was impacted because of government entities’ advertising contracts.
Listen to the arguments here.
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“From the Boston Tea Party to the Montgomery Bus Boycott to the boycott of apartheid South Africa, consumer boycotts have been deeply embedded in American politics,” ACLU attorney Brian Hauss said in opening his argument for the Times. Supreme Court precedent establishes that the First Amendment protects this right to boycott, Hauss argued.
“The function of the law is to police speech,” he said.
The ACLU is appealing a ruling by federal Judge Brian Miller, who found in January that the state of Arkansas may legally refuse to do business with the Times if the publication refuses to sign the oath as a matter of principle. Such laws were blocked in lawsuits in three other states, but Miller went the other way on the Arkansas law. Here’s the ACLU’s brief appealing Miller’s ruling.
The Times does not boycott Israel and has not editorialized on that issue, but as publisher Alan Leveritt put it, “the idea that the state would force a publishing company to take a political position in return for business was offensive.”
“The government cannot condition a benefit foreswearing participation in constitutionally protected [speech],” Hauss argued to the Court of Appeals yesterday. “If boycotts are protected, then the government cannot require contractors to foreswear participation in the boycott.”
While the Times has no plans to boycott Israel, Hauss said, “it doesn’t want to surrender its First Amendment rights to participate in a boycott. Just as you don’t have to be a communist to object to an anti-communist certification, you don’t have to be a BDS participant to see the First Amendment problem and object on First Amendment grounds to being forced to disavow your right to boycott.”
Defending the law for the state, Arkansas solicitor general Nicholas Bronni argued that “refusing to buy or sell goods based on national origin is neither speech nor inherently expressive,” even if it is a boycott motivated by a political argument. Bronni claimed that signing a pledge not to boycott Israel is “not a political message…you’re not making a political statement.”
In his rebuttal, Hauss argued, “the law effectively requires contractors to take the government’s side in this ideological debate.”
“The fact that there’s no evidence for any legitimate governmental interest here strongly supports the conclusion that what the statute is really targeted at is expression,” Hauss said.
The Court of Appeals will now consider the arguments; no date is set for a decision.