The Arkansas Times won a victory in February when the 8th U.S. Circuit Court of Appeals said it was an abridgment of free speech for the state to require people who do business with the state to sign a pledge not to boycott Israel or take a 20 percent cut in compensation instead of the pledge.
The Times’ refusal to sign the pledge (though we have not written about the boycott issue) cost the publication an advertising contract with Pulaski Tech, a part of the University of Arkansas System. We sued the UA Board with the assistance of the ACLU.
The victory is so far without meaning.
The state continues to enforce the law.
I learned this when I inquired about a report that musicians signing up for performances at the Ozark Folk Center, a state park, were being required to sign the pledge.
I got this response from Melissa Whitfield, spokesman for the Department of Parks, Heritage and Tourism.
I asked our general counsel about the status of how this is being handled and got this reply:
The Office of State Procurement has yet to provide further guidance on point.
Such is likely due to the continuing litigation of the matter in the Federal Court system.
Additional information regarding state procurement policy can be found by contacting the Arkansas Department of Transformation and Shared Services.
Additional information regarding the legal status of this matter can be found by contacting the Arkansas Attorney General’s office.
The attorney general’s office wouldn’t talk to me about it, with spokesperson Amanda Priest saying, “Due to pending litigation, I would have your attorney directly contact our attorneys.”
Publisher Alan Leveritt tells me Arkansas Times‘ publications are still being denied state advertising because the company is refusing to sign the pledge.
The problem is legal. The 8th Circuit didn’t enjoin enforcement of the law, it sent the case back to a district court for a ruling consistent with its 2-1 opinion. But Attorney General Leslie Rutledge on March 29 asked for a rehearing of the case or an en banc hearing by the full 8th Circuit Court of Appeals. This week, the court issued an order asking for briefs only on the question of an en banc hearing. The briefing period on that request runs through May 24.
The case has wide interest. The usual group of Republican attorneys general is joining in support of Rutledge, as have some conservative lawyers, Christians United for Israel, the Israeli-American Coalition for Action, the Union of Orthodox Jewish Congregations and others. The anti-boycott movement is a product of Israeli lobby groups response to groups calling for boycotts of Israel over treatment of Palestinians (the so-called BDS movement). It has been adopted by Republicans nationally. Variations of the law have been passed in 32 states and struck down every time they’ve been challenged (except in the district court in Arkansas, which was reversed by the 8th Circuit.) In other states where the law was struck down, amendments were made to attempt to skirt court rulings, such as by exempting all contracts of less than $100,000. No such effort was made in Arkansas.
Should the en banc hearing be denied, likely, Rutledge would then turn to the U.S. Supreme Court, which hasn’t addressed the issue. In the meanwhile, the case would return to the district court for compliance with the 8th Circuit order.
The Lawfare blog writes about nuances of the case and possible consequences if a hearing is denied by the 8th Circuit:
If the petition is denied, the district court judge will face the task of determining how to enact the Eighth Circuit panel’s decision. Eugene Volokh—who filed an amicus brief on appeal arguing that the anti-BDS law is constitutional—writes that under Arkansas law the phrase “other actions” is severable from the other two prongs of the definition of “boycotts of Israel.” One thing the district court judge might do is grant a preliminary injunction against the “other actions” provision without invalidating either the “engaging in refusals to deal” or “terminating business activities” parts of the law, which could remain in force. But this wouldn’t necessarily resolve the case. If the Arkansas Times appeals a decision not to enjoin the other provisions of Act 710, the Eighth Circuit may have to consider the question it side-stepped in its recent decision: whether the act would violate the First Amendment if it were limited to purely economic activity.