The 8th U.S. Circuit Court of Appeals yesterday granted the state of Arkansas’s request for a hearing by the full court on the Arkansas Times’ lawsuit challenging the state law that requires a pledge not to boycott Israel from those who want to do business with the state.
A panel of the court had held, 2-1, the law unconstitutional, overturning a lower court ruling. The panel’s ruling was in line with rulings on similar laws in several other states. The law has remained in effect in Arkansas as the state sought a rehearing by the full court and now the panel’s decision has been set aside.
The state argues that the law limits only commercial activities, which aren’t protected constitutionally. but does not infringe on free speech rights.
I disagree of course. To do business with Arkansas on an equal footing with others, the Arkansas law compels speech by my employer, essentially in support of a viewpoint deemed politically correct by the Arkansas legislature. (This means anybody, down to a musician who wants to play the banjo on a show at the Folk Center in Mountain View, if the pay is more than $1,000.) The law allows a contractor to refuse to sign the pledge, but the contractor must take a minimum 20 percent cut in customary price for this option. The law cost us an ad contract with Pulaski Tech, now a division of the University of Arkansas. UA is fighting to uphold the law, with representation by Attorney General Leslie Rutledge. She was pleased with yesterday’s decision as to were the pack of Republican attorneys who joined her request.
The Times has never engaged the Israeli question; it simply resists being compelled to take the legislature’s required pledge on Israel (or anything else it might choose to make subject to a loyalty oath).
Yesterday’s brief order is not good news for our case.
A majority vote of the 11-judge 8th Circuit is required to hear a case en banc and it happens rarely. If a majority wants to hear the case, it’s easy to infer that a majority didn’t like the panel’s decision. Judge Stephen Colloton didn’t take part in yesterday’s decision for the en banc hearing, which leaves 10 to decide the case if he continues not to participate.
This issue is not cut and dried as to what’s next. It might not be a simple up-or-down decision on the law. A reversal of the panel could set off another round of arguments about nuances of the law some not directly addressed so far, discussed here by a law professor/blogger who supports the law.
A hearing date has not been set.