Court upholds Arkansas law allowing state to reject business that boycotts Israel

In a 9-1 decision the court said the law is “prohibiting purely commercial, nonexpressive conduct"

Updated: June 22, 2022 - 6:40pm

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The U.S. Court of Appeals for the 8th Circuit upheld an Arkansas law that requires state contractors to pledge they are not boycotting Israel or to give state entitles a 20% discount if they don’t agree with the pledge.

The 2017 law, which applied to contracts more than $1,000, was challenged by The Arkansas Times, which said complying with the law would hurt its advertising revenue from the University of Arkansas-Pulaski Technical College.

The American Civil Liberties Union represented the newspaper and contended the law “placed an unconstitutional condition on the award of government contracts” and violated free speech.

A three-judge panel of the 8th circuit appeals court ruled in favor of the Arkansas Times last year. The state asked for the entire appellate panel to hear the case and it was argued before all nine judges in September 2021.

In a 9-1 decision the court said the law is “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,” the judges said in their ruling. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

Judge Jane Kelly dissented.

“Considering the Act as a whole – as Arkansas principles of statutory interpretation instruct – it is my view that the term ‘other actions’ in the definition of ‘boycott Israel’ and ‘boycott of Israel’ encompasses more than ‘purely commercial, non-expressive conduct,’” Kelly wrote. “Thus, I would conclude that the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime.’ Such a restriction violates the First Amendment.”

The ACLU plans to appeal, the Arkansas Times reported.

“The Eighth Circuit’s decision is wrong, and we intend to seek Supreme Court review,” said ACLU attorney Brian Hauss in a statement to the newspaper. “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.”

Arkansas Attorney General Leslie Rutledge praised the ruling.

“Today is a resounding victory for Arkansas’s anti-discrimination law and reinforces Arkansas’ relationship with our long-time ally, Israel,” Rutledge said in a statement. “Arkansas had to spend taxpayer resources proving that Arkansas Times is not entitled to discriminate.”