Requiring contractors doing business with Arkansas to sign a pledge saying they won't boycott Israel violates the First Amendment right to free speech, according to an 8th U.S. Circuit Court of Appeals opinion on Friday.
The case involves Arkansas Act 710 of 2017, "an act to prohibit public entities from contracting with and investing in companies that boycott Israel; and for other purposes," according to its title.
It passed overwhelmingly that year -- by a vote of 69-3 in the Arkansas House of Representatives and 29-0 in the state Senate. Several legislators didn't vote on the bill.
"The act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime,'" U.S. Circuit Judge Jane Kelly of Cedar Rapids, Iowa, wrote for the appeals court majority. "Such a restriction violates the First Amendment."
In December 2018, the Arkansas Times filed a lawsuit in federal court in Little Rock seeking to halt University of Arkansas System schools from requiring a pledge not to boycott Israel as part of business contracts.
Chief U.S. District Judge Brian Miller dismissed the case the next month.
The American Civil Liberties Union of Arkansas, which filed the lawsuit on behalf of Arkansas Times LP, appealed the case to the 8th Circuit.
On Friday, in a 2-1 decision, the appeals court panel reversed Miller's decision and remanded the case back to his court "for proceedings consistent with the opinion of this court," referring to the 8th Circuit.
"The Arkansas Times, and the First Amendment, have prevailed in a lawsuit challenging the state law that prevents state business with those who won't pledge not to boycott Israel," Max Brantley, senior editor of the Arkansas Times, wrote on its website Friday.
"We had never editorialized about Israel or the boycott but objected to being forced to sign a pledge about editorial content as a condition of doing business," wrote Brantley. "The case was over an advertising contract with the Pulaski Tech branch of the University of Arkansas. We lost an existing contract because we refused to sign a pledge."
Alan Leveritt, the publisher of the Arkansas Times, said the phrase "or other actions" in the Act 710 definition of "boycott of Israel" was too broad. He said it could include writing editorials or hanging a sign in his window.
"That is just so clearly moving into First Amendment territory on top of the fact that you have a long tradition of boycott, starting with the Boston Tea Party," said Leveritt. "That was not only a commercial action, it was expressive."
Leveritt said Israel isn't a topic typically addressed by the Arkansas Times.
"We're interested in defending Medicaid expansion, not Jerusalem," he said. "All we're interested in is Arkansas."
Leveritt said the Arkansas attorney general's office is defending the lawsuit, and billing Pulaski Tech for its time.
"My son is a student at Pulaski Tech," said Leveritt. "They're taking money that's supposed to be used to educate those kids and using it to pay the damn lawyers."
Amanda Priest, a spokeswoman for Rutledge said Friday in a statement that "the Attorney General is disappointed in the Eighth Circuit's decision, which interferes with Arkansas's law banning discrimination against Israel, an important American ally She is reviewing the opinion to determine the next step."
Lynn Hamilton, president of the Arkansas Democrat-Gazette, said the company has signed the forms from state entities pledging not to boycott Israel.
"We made a business decision to run their advertising because we have no intention of boycotting the state of Israel," he said. "We're not taking the same philosophical stance that the Arkansas Times is because we have no intention to boycott the state of Israel."
Act 710 was passed at a time when the boycott, divestment, sanctions (BDS) movement was gaining increasing success internationally, according to the Encyclopedia of Arkansas. The movement originated in 2005 as part of the Palestinian-led resistance to Israel's occupation of Palestinian territory.
It sparked a backlash, especially in the United States, "a country with significant military and economic ties to the nation of Israel, as well as a large population of evangelical Christians who believe that American support for Israel is necessary for advancing the Second Coming of Christ," according to the encyclopedia.
In 2015, Tennessee became the first state to pass an "anti-BDS law," according to the Encyclopedia of Arkansas. By 2019, some 27 states had passed laws that, in some degree, prohibited boycotts relating to the state of Israel. Judges in Texas, Arizona and Kansas ruled against these laws.
Holly Dickson, ACLU of Arkansas executive director, said Friday was a good day for freedom of speech in Arkansas.
"Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test," she said. "Free speech isn't a privilege you pay for, it's a right guaranteed to every Arkansan."
The majority opinion by Kelly affirmed that "supporting or promoting boycotts of Israel is constitutionally protected" and yet the law required "government contractors to abstain from such constitutionally protected activity," according to a news release from ACLU Arkansas.
"Political boycotts are a legitimate form of nonviolent protest, and they are protected by the First Amendment," said ACLU attorney Brian Hauss.
A joint statement was issued Friday afternoon by two organizations that had joined an amicus brief in the suit supporting the Arkansas Times -- T'ruah, a rabbinic human-rights organization, and J Street, which "organizes pro-Israel, pro-peace Americans to promote US policies that embody our deeply held Jewish and democratic values and that help secure the state of Israel as a democratic homeland for the Jewish people."
"This is a huge victory in the fight for free speech," according to the statement from T'ruah Executive Director Rabbi Jill Jacobs and J Street President Jeremy Ben-Ami. "Anti-BDS laws like these violate the constitutional rights of Americans while doing absolutely nothing to protect Israel or Jews. This is the first appellate decision striking down an anti-BDS law, and it reverses the only district court opinion finding an anti-BDS law to be constitutional. This decision will send a strong signal to other courts evaluating the legality of anti-BDS laws under the First Amendment."
According to Act 710, "Boycott Israel' and 'boycott of Israel' means 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."
According to the appeals court opinion issued Friday, the term "other actions" in the definition above encompasses more than "commercial conduct" similar to refusing to deal or terminating business activities.
"Instead, the act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel," wrote Kelly. "As such, the Act restricts government contractors' ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in [NAACP vs. Claiborne Hardware Co.]. Therefore, the act imposes a condition on government contractors that implicates their First Amendment rights."
In the Claiborne case, the court considered a boycott by Black citizens of white merchants in two Mississippi counties.
"Boycott participants purchased goods and services exclusively from Black-owned stores but also used speeches, nonviolent picketing and pamphleting to put economic pressure on white-owned businesses," wrote Kelly. "The boycott's 'acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice,' in part by causing 'the [boycotted] merchants [to] sustain economic injury as a result of their campaign.' Several of the merchants filed suit to recover losses caused by the boycott and to enjoin future boycott activity."
The Supreme Court rejected the merchants' claims and held, in relevant part, that the "nonviolent elements of [the boycott we]re entitled to the protection of the First Amendment," wrote Kelly.
"Arkansas Times asserts that a boycott of Israel is necessarily politically motivated and that any effort to restrict a government contractor's ability to participate in such a boycott is, as a result, an unconstitutional condition," wrote Kelly.
Circuit Judge Jonathan Kobes of Sioux Falls, S.D., disagreed with the other two judges in the appeals court opinion.
In Arkansas, "the first and most important rule of statutory interpretation is that a statute is presumed constitutional and all doubts are resolved in favor of constitutionality," he wrote, citing case law. "To honor this principle, 'if it is possible to construe a statute as constitutional, we must do so.' ...
"The court's effort to stretch the term 'other actions' is unavailing," wrote Kobes. "The easiest and most natural reading of the statute is constrained: 'other actions' is similar to the purely commercial terms preceding and modifying it. I would interpret it accordingly and affirm the district court. I respectfully dissent."