Chief U.S. District Judge Brian Marshall said Friday that he will issue a written order as soon as he can on whether to ban enforcement of a state law prohibiting companies that contract with state agencies from boycotting Israel.
The Arkansas Times newspaper -- which, in attempting to secure an advertising contract with a state university, was asked to sign a pledge that it wouldn't boycott Israel -- has challenged the constitutionality of the law. Similar laws have been blocked by federal judges in at least two other states after being challenged by the American Civil Liberties Union, whose Arkansas branch is representing the Times.
Miller heard arguments Friday from attorneys for the ACLU and an attorney defending the law on behalf of the state. He said afterward that what he at first thought was a simple case became more complicated when the attorney general's office filed its arguments in support of the law.
Although a non-jury trial on the constitutionality of the issue has been tentatively set to begin Dec. 2, the Times is seeking a preliminary injunction that would immediately block the law's enforcement. The Times says the edict is causing it to lose advertising revenue that it has enjoyed for years from the University of Arkansas-Pulaski Technical College, because the college has cited the state law in refusing to renew its advertising contract until the Times agrees not to boycott the country for the duration of the contract.
The newspaper says that while it doesn't have any plans to boycott Israel, it doesn't want to be bullied into agreeing with any political viewpoint of the state in order to do business with the state.
"That's not what this is doing," attorney Dylan Jacob of the attorney general's office argued Friday. "Meeting a requirement for a government contract is not compelled speech."
He called it "a commercial decision," as opposed to an issue of free speech protected by the First Amendment.
But the ACLU disagreed.
"We contend this is a classic compelled speech case," attorney Bettina Brownstein argued on behalf of the Times. "It requires the plaintiff to speak on a matter of public concern when it prefers to be silent. The plaintiff takes no position on whether there should be a boycott of Israel or not. That is an individual decision."
Brownstein also said, "Having to express an opinion ... as a requirement of a government contract is itself a violation of protected speech. ... Free speech includes the right to speak freely and the right to refrain from speaking at all. ... Compelling someone to speak on a matter of public interest is enough to satisfy the violation of the First Amendment."
She added, "Whether or not the Times speaks about the boycott or not has nothing to do with its ability to run the advertisement. There is absolutely no justification here for the certification requirement. The 20 percent bargain undercuts that."
The disputed state law -- Act 710 of 2017 -- contains an exception allowing a business to contract with a state entity without signing the no-boycott pledge if the business agrees to give the state a discount of 20 percent below the price of any other similar business that agrees to the certification.
Attorney Brian Hauss, representing the ACLU Foundation in New York City, argued at length about how the ACLU's case is consistent with case law.
"Here, the state is trying to penalize and suppress expression," he said. "It's targeting boycotts in only one subject matter -- Israel."
Hauss also argued that the contract requirement is part of a public campaign, making the boycott a protected form of expression.
Miller took the case under advisement and agreed to let attorneys file additional briefs before he makes a decision. He has an anticipated three-week jury trial beginning Monday, which could delay a decision.
Alan Leveritt, publisher of the weekly Times, said in a post Thursday on the ACLU's website that when the University of Arkansas System began strictly enforcing the law in the fall, "we had a decision to make. Times are hard in the publishing industry and we really needed the business. But at what price? It had never occurred to us to boycott anyone, but the idea that the state would force a publishing company to take a political position in return for business was offensive."
He wrote that after learning that the law allowed the paper to continue to do business with the state if it accepted a 20 percent reduction in ad rates, "I said, 'Well, to hell with them.' We were not going to pay a 20 percent tax for the right to hold beliefs independent of the Arkansas Legislature, at least not without a fight."
"As journalists, citizens and taxpayers, we dispute the right of the state to impose an ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit," Leveritt said.
He called the law "a rabbit hole our country does not need to go down," adding, "Since when do American citizens have to pledge to act in the interest of a foreign power in order to do business with their own government? Since when does the state of Arkansas punish its own taxpayers in an effort to assist a foreign government with its domestic policy? As an American, I say it is none of their d**n business what political beliefs we hold. We'll see them in court."
Metro on 01/05/2019