Big news today from the 8th U.S. Circuit Court of Appeals.
The Arkansas Times, and the First Amendment, have prevailed in a lawsuit challenging the state law that prevents state business with those who won’t pledge not to boycott Israel.
A federal district court had dismissed our challenge, but the 8th Circuit, in a 2-1 decision, sent the case back to the district court.
The Times, represented by the ACLU, asked for an injunction against the law. We had never editorialized about Israel or the boycott but objected to being forced to sign a pledge about editorial content as a condition of doing business The case was over an advertising contract with the Pulaski Tech branch of the University of Arkansas. We lost an existing contract because we refused to sign a pledge.
The summary from the 8th Circuit:
Held: considering the Act as a whole, the statutory term "other actions" in the definition of "boycott Israel" and "boycott of Israel" encompasses more than commercial conduct similar to refusing to deal or terminating business activities. Instead, the Act seeks to restrict government contractors' ability to participate in speech and other protected, boycott-associated activities recognized as entitled to protection under Supreme Court precedent, thereby implicating First Amendment rights; because the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship "on its own time and dime," the restriction violates the First Amendment. Reversed and remanded for further proceedings.
Such laws have been blocked in three other states, but Judge Brian Miller went against us in Arkansas. He now must reconsider “consistent with the ruling.”
Many media have signed the pledge. It covers more than advertising, but in theory, applies to any contractor with the state. It’s a cookie-cutter law favored by conservative supporters of Israel.
Judge Jane Kelly wrote the opinion and was joined by Judge Michael Melloy. Judge Jonathan Kobes dissented. Kelly concluded, as the law was written, it was seeking to leverage funding to regulate speech outside the contours of the program itself.
The open-ended nature of the law was a problem.
Considering the Act as a whole, we conclude that the term “other actions” in the definition of “boycott Israel” and “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts governmentcontractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne.
Another loss for Attorney General Leslie Rutledge.
The ACLU said:
“It’s a good day for the freedom of speech in Arkansas,” said Holly Dickson, ACLU of Arkansas executive director. “Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test. Free speech isn’t a privilege you pay for, it’s a right guaranteed to every Arkansan.”
The majority opinion by Judge Jane L. Kelly affirmed that “supporting or promoting boycotts of Israel is constitutionally protected” and yet the law required “government contractors to abstain from such constitutionally protected activity.”
“We’re thrilled by the court’s ruling, which upholds the fundamental right to participate in political boycotts,” said ACLU attorney Brian Hauss. “The government cannot force people to choose between their livelihoods and their First Amendment rights, which is what this law did. Political boycotts are a legitimate form of nonviolent protest, and they are protected by the First Amendment.”