A federal lawsuit filed Tuesday by the Arkansas Times seeks to halt University of Arkansas System schools from requiring a pledge to not boycott Israel as part of business contracts.
The lawsuit also asks that the 2017 state law behind the pledges be declared unconstitutional.
The American Civil Liberties Union of Arkansas filed the lawsuit on behalf of Arkansas Times LP, according to an ACLU statement. The ACLU contends Act 710 violates free speech protections in the U.S. Constitution.
"Strike it down in its entirety. Declare it unconstitutional and strike it down, that's what we want," said Bettina Brownstein, a cooperating attorney with the ACLU who is based in Little Rock.
The Arkansas Times has never boycotted Israel nor advocated for a boycott, the Little Rock-based newspaper said in a post on its website.
"Regardless of what people may think about this particular boycott, it is not the government's place to decide what causes Arkansans can or cannot support," Alan Leveritt, publisher of the weekly Times, said in a statement.
About 20 states had enacted similar laws or anti-boycott measures relating to Israel as of August 2017, Ron Dermer, Israel's ambassador to the U.S., told state lawmakers at that time.
The ACLU has challenged laws in other states, including Kansas and Arizona. A federal district court judge in September granted a request that the Arizona law be blocked for now, pending any further outcome in the court case.
Similarly, a federal district court judge in Kansas also halted the law in January. The Kansas case was dismissed in June after state legislators changed the law so it would not apply to the person who filed the lawsuit, The Topeka Capital-Journal reported.
State Sen. Bart Hester, a Republican from Cave Springs, sponsored the Arkansas law.
"I think it's always the right thing to be in the position of defending Israel," Hester said.
He disagreed with the idea that the law is in conflict with free speech protections.
"My position is they have the right to boycott Israel all they want. They're just not going to be able to do it and do business with Arkansas," Hester said. He said lawmakers who back the law have closely followed legal challenges elsewhere.
"We've been working on some modifications to our law," Hester said. In January and February, when legislators are in session, lawmakers will work on addressing "concerns the federal courts have had with the other states' laws," he said.
State Rep. Jim Dotson, a Republican from Bentonville and a bill sponsor, said in an email: "Israel is our strongest ally in the Middle East. As Americans it's important we not only support our allies, but we do NOT spend Arkansas tax dollars supporting" those who would harm Israel.
The lawsuit was filed against the 10 members who make up the University of Arkansas board of trustees.
Publications owned by the parent company of the Times had previously "for many years" published advertising from University of Arkansas-Pulaski Technical College, according to the ACLU statement. This year, the school asked the Times to sign a certification to not engage in a boycott of Israel as a condition of a contract, according to the ACLU.
"Campuses in the University of Arkansas system have been advertising with us for years, so we were shocked and more than a little troubled when they sent over what looked like a loyalty oath as a condition of payment," Leveritt said in a statement.
Nate Hinkel, a spokesman for the University of Arkansas System, said in an email that "because of the statewide issues involved in this case, we have reached out to the Arkansas Attorney General's office and they have agreed to represent the University with this matter."
A spokesman for Arkansas Attorney General Leslie Rutledge confirmed her involvement.
Arkansas legislators described Israel as being a "prominent target" of boycotts. The law states that companies refusing to deal with Israel "make discriminatory decisions on the basis of national origin that impair those companies' commercial soundness."
The law states that it applies to public entities, who shall not "enter into a contract with a company to acquire or dispose of services, supplies, information technology, or construction unless the contract includes a written certification that the person or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel."
The law states that the requirement does not apply to contracts of less than $1,000 or to a company that "offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business."
"Public entity" is defined in the law as the state "or a political subdivision of the state," and the law specifies that "does include colleges, universities, a statewide public employee retirement system, and institutions in Arkansas as well as units of local and municipal government."
The law defines a "boycott of Israel" as meaning "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner."
Lynn Hamilton, president and general manager of the Arkansas Democrat-Gazette, said the news organization has not been asked by any University of Arkansas System entity to sign such a pledge as a condition of an advertising deal.
Ashley Wimberley, executive director of the Arkansas Press Association, said in an email: "We've not heard from members about any concerns regarding this particular state law, but we obviously support a member's right to challenge the constitutionality of the law."
Eugene Kontorovich, a law professor at George Mason University's Antonin Scalia Law School, has written an op-ed published in The Washington Post stating that such anti-boycott laws do not violate free speech protections.
He said the lawsuit stands out because the Arkansas Times is not boycotting Israel.
"They're not suggesting that this rule keeps them from engaging in some boycott they want to engage in. They just don't like the rule," Kontorovich said.
He said such anti-boycott laws can be thought of as similar to an executive order issued under President Barack Obama in 2014 that prohibited federal contractors from discriminating on the basis of sexual orientation or gender identity.
Kontorovich also noted that the lawsuit deals with advertising. He said people placing advertisements are "buying into the image, reputation and values of the newspaper, so those values are quite germane."
Brownstein, an attorney representing the Arkansas Times, said "there is clearly a Supreme Court precedent that does not allow the government to condition a contract or employment on the disavowing of a certain point of view or espousing a specific point of view."
She said she hopes a judge decides quickly on a request to halt the law pending further outcomes.
The lawsuit describes two annual contracts each for more than $1,000 that would have been entered but for the newspaper's "refusal to sign the anti-boycott pledge," and states the Arkansas Times is "not willing to accept a 20% discount on payment."
Brownstein said: "The Arkansas Times is losing money every day that this law is in place."
Metro on 12/12/2018