The state attorney general's defense of an anti-boycott law failed to consider the history of politically motivated consumer action, states the Arkansas Times in a court filing Monday.
The Little Rock-based news organization and the American Civil Liberties Union are seeking to block Act 710 of 2017, a law that added a pledge to not boycott Israel as a part of vendor contracts with the state of $1,000 or more.
The Arkansas Times, represented by ACLU and local attorneys, claims the law violates First Amendment protections.
An earlier court case, NAACP v. Claiborne Hardware Co., "put the seal of First Amendment protection on this longstanding constitutional tradition, holding that politically-motivated consumer boycotts are a form of expression on public issues," states the response brief filed Monday.
The Claiborne case involved a boycott of white merchants launched in 1966 by blacks seeking equality and racial justice. The U.S. Supreme Court found that states can regulate economic activity but there is no "comparable right to prohibit peaceful activity such as that found in the" boycott described in the case.
The Times argues in the filing that consumer boycotts "have played a uniquely expressive role in American politics," referring to actions taken as part of the American Revolution that protested British policies and boycotts against merchants who sold items made by slaves.
The state, in a May 31 filing by Attorney General Leslie Rutledge and other state attorneys, argued that a boycott of Israel "is not inherently expressive" and that the law "does not prohibit anyone from criticizing Israel, condemning Act 710, or even advocating boycotting."
Other legal challenges have sprung up elsewhere against similar laws enacted in more than two dozen states.
The measures have come about in contrast to the Boycott, Divestment, and Sanctions movement, which advocates for economic measures against Israel because of actions described by supporters as human-rights violations against Palestinians.
The Arkansas Times in a post on its website has said it has never boycotted Israel nor advocated editorially for a boycott. Times publisher Alan Leveritt has said the news organization is suing because "it is not the government's place to decide what causes Arkansans can or cannot support."
The response brief also argues that the Arkansas Times "wishes to remain absent from the debate over boycotts of Israel," and the state law "is an unconstitutional attempt to conscript the Arkansas Times into that debate."
The filing is part of an appeal pending in the 8th U.S. Circuit Court of Appeals in St. Louis that asks for the reversal of a federal district court order that dismissed the Times' lawsuit.
The lawsuit was filed against the 10 members who make up the University of Arkansas board of trustees. Court documents state the University of Arkansas-Pulaski Technical College asked the Times to sign a certification to not engage in a boycott of Israel as a condition of an advertising contract.
A cooperating attorney with the ACLU, Bettina Brownstein, told the Democrat-Gazette in December that the Times "is losing money every day that this law is in place."
This year the Arkansas Times switched from a weekly print format to a monthly publication, in addition to its news website. Decreasing advertising revenue has been the norm for U.S. newspapers since 2011, according to estimates from the Pew Research Center.
The Arkansas Times website on Monday featured advertising for the University of Arkansas for Medical Sciences, a part of the University of Arkansas System.
Leveritt said the Arkansas Times has not signed any certification as a part of advertising deals, pointing out that the state law includes an exception for companies offering discounted goods or services.
The state law does not require a pledge from a company that "offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business," the law states.
"We have signed nothing," Leveritt said in an email. "The law allows a vendor that refuses to sign to still do business with the state provided that it gives the state a 20% discount against its regular rate. We offer this to any state agency so that we can continue to survive."
Metro on 07/09/2019