Civil-rights advocates pressed the U.S. Supreme Court Thursday to review a challenge to an Arkansas law that requires state contractors to pledge not to boycott Israel.
The American Civil Liberties Union filed the petition on behalf of the Arkansas Times, a weekly newspaper in Little Rock, requesting the court overturn a federal appeals court ruling.
In June, the 8th U.S. Circuit Court of Appeals ruled the Arkansas law does not infringe on constitutional free speech rights.
The law, which Arkansas legislators passed in 2017, bars state entities from entering into a contract valued at $1,000 or more unless the contractor agrees not to boycott Israel. The requirement does not apply if a company "offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business."
In the ACLU's petition to the Supreme Court, attorneys claimed the 8th U.S. Circuit Court of Appeals showed disregard for a "long line of precedent" in their ruling. The civil-rights group pointed to a Supreme Court ruling that found an NAACP-led boycott of a hardware retailer in Mississippi was protected under constitutional rights.
"Permitting a state to single out specific boycott campaigns for suppression contravenes the well-established principle that the 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,'" the petition states.
The ACLU challenged the law in 2018 in support of the Arkansas Times. The civil liberties organization has sued to block similar laws in other states.
The Arkansas Times stated in the lawsuit it had never boycotted Israel nor editorialized in favor of a boycott. It filed the legal challenge to block the University of Arkansas from requiring the paper sign an anti-boycott pledge or provide advertising at a discount.
In their main opinion, the 8th U.S. Circuit Court of Appeals determined the Arkansas Supreme Court would likely find that the law regulates only commercial -- as opposed to expressive -- 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 opinion stated. "Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment."
The June opinion from the 10-judge panel included a formal dissent from U.S. Circuit Judge Jane Kelly who wrote the legislature intended to prohibit both commercial and expressive behavior by passing the law.
Arkansas Attorney General Leslie Rutledge requested the 8th U.S. Circuit Court of Appeals review the legal challenge after a three-judge panel in February 2021 reversed a federal district judge's dismissal of the lawsuit.