The 8th U.S. Circuit Court of Appeals today ruled that the state law limiting state business with those who refuse to sign a pledge not to boycott Israel is not a violation of the First Amendment.
The decision, made by the entire court, reverses a decision by a three-judge panel that the law was unconstitutional.
The Arkansas Times challenged the law, with the support of the ACLU, contending it was unconstitutional compelled speech.
In a 17-page opinion, the court sided with the defendant, the University of Arkansas Board of Trustees. They were sued because the Times faced losing advertising with the Pulaski Tech branch of the UA unless it signed the pledge or agreed to provide services at a 20 percent discount.
Civil case - Constitutional law. Arkansas Act 710 prohibiting state entities from contracting with private companies unless the contract includes a certification that the company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel, does not violate the First Amendment; under Arkansas's canons of statutory interpretation, the court concludes the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, non-expressive conduct; the certification requirement concerning unprotected, nondiscriminatory conduct is not unconstitutional compelled speech. Judge Kelly, dissenting.
The entire court heard the case. It is one of the most conservative in the country and this decision departs from decisions in many other states. But in most of those cases, faced with unfavorable court decisions, states have moved to correct laws to make them more free speech compliant. Arkansas has stood firm behind its law, one of nearly three dozen such “anti-BDS (Boycott, Divestment and Sanctions)” laws passed around the country.
The court wrote, in part:
Under Arkansas’s canons of statutory interpretation, we think the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, nonexpressive conduct. It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.
As for whether the state law “compelled” speech, the court wrote:
We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech. A factual disclosure of this kind, aimed at verifying compliance with unexpressive conduct-based regulations, is not the kind of compelled speech prohibited by the First Amendment.
Justice Jane Kelly wrote in dissent:
The Act requires government contractors, as a condition of contracting with Arkansas, to agree not to engage in economic refusals to deal with Israel or to support or promote boycotts of Israel. Because the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne, see 458 U.S. at 915, it imposes a condition on government contractors that implicates their First Amendment rights.
…Supporting or promoting boycotts of Israel is constitutionally protected under Claiborne, yet the Act requires government contractors to abstain from such constitutionally protected activity. Without any explanation of how this condition seeks to “define the limits of [the State’s] spending program,” it can be viewed only as seeking to “leverage funding to regulate speech outside the contours of the program itself.”
Times publisher Alan Leveritt tells the staff of the 8th Circuit decision, which he said was expected. He said he will visit with the ACLU attorney in New York, Brian Hauss, when he returns from a honeymoon to discuss future steps.
Hauss was able to send a comment:
“The Eighth Circuit’s decision is wrong, and we intend to seek Supreme Court review. The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent and departs from this nation’s longstanding traditions. It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since. We hope and expect that the Supreme Court will set things right and reaffirm the nation’s historic commitment to providing robust protection to political boycotts.”
The American Jewish Committee, which supports this and other boycott laws, issued a statement:
This was the first appellate test of laws that combat the Boycott, Divest and Sanctions movement, whose primary aim is to eliminate the State of Israel. The Eighth Circuit unequivocally affirmed that such laws do not infringe on the First Amendment. As the court noted, Arkansas has broad power to regulate economic activity, and taking a position on a boycott does not inhibit free speech.
The Times disagrees. Strenuously.
More from publisher Leveritt:
We are obviously disappointed and note that these laws, which were originally passed in over 30 states, have been overturned in every court except this one. We consider being banned from doing business with our state government for refusing to sign a pledge not to boycott Israel a ridiculous government overreach that has nothing to do with Arkansas. More importantly, in our particular case it requires the Arkansas Times to take a political position in return for advertising. We don’t do that. I acknowledge that this ruling will continue to damage us financially. The good news is that we have received tremendous support from our readers to the point that we now have over 3,000 paid online subscribers, which has done much to cushion the financial impact of this law. In meetings with our ACLU attorneys this morning we anticipate an appeal to the U.S. Supreme Court.
UPDATE: Here’s a ridiculous release from Attorney General Leslie Rutledge:
“Today is a resounding victory for Arkansas’s anti-discrimination law and reinforces Arkansas’s relationship with our long-time ally, Israel,” said Attorney General Leslie Rutledge. “Arkansas had to spend taxpayer resources proving that Arkansas Times is not entitled to discriminate.”
Arkansas’s anti-discrimination law, Arkansas Act 710 of 2017, is a commonsense law that prohibits public entities from contracting with, and investing in, companies that boycott Israel. In 2018, Arkansas Times filed a lawsuit seeking to halt University of Arkansas System schools from requiring a pledge not to boycott Israel as part of business contracts. In January 2019, the United States District Court for the Eastern District of Arkansas sided with Arkansas and dismissed that lawsuit. In February, a three-judge panel sided with Arkansas Times, and after Arkansas successfully petitioned the Eighth Circuit to hear the case en banc, the case was reargued in September 2021.