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Arkansas Ban on State Contractors Boycotting Israel Upheld

June 22, 2022, 4:16 PM

Arkansas’ requirement that all state contractors certify that they won’t boycott Israel for the length of their contract doesn’t violate the First Amendment, the en banc Eighth Circuit said Wednesday.

Arkansas Times LP, a newspaper that contracts with the University of Arkansas-Pulaski Technical College, claimed that the requirement placed an unconstitutional restriction on the award of government contracts and amounted to compelled speech.

The statute defines boycotting Israel as “engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel.”

The basic dispute was whether the statute only covers unexpressive commercial conduct, or whether it also prohibits expressive conduct, the opinion Judge Jonathan A. Kobes said.

Arkansas Times argued that the phrase “other actions” captures expressive conduct, such as supporting an Israeli boycott by someone else.

The Arkansas Supreme Court has never interpreted the statute, but the US Court of Appeals for the Eight Circuit said that the state court would uphold its constitutionality.

The state supreme court has held that all statutes are presumed constitutional, the court here said. The specific phrases “engaging in refusals to deal” and “terminating business activities” also relate solely to commercial activities and it follows that “other actions” does, too, it said.

The statute’s legislative intent further supports the conclusion that the statute only applies to commercial activities, the court said. The statute was adopted out of “concern for the commercial viability of companies that refuse to do business with Israel and the effect this could have on the state’s finances,” it said.

The Arkansas Supreme Court would read the statute “as prohibiting purely commercial, non-expressive conduct” that can be regulated under the First Amendment, the Eighth Circuit said.

Nor is a certification requirement concerning unprotected, nondiscriminatory conduct unconstitutionally compelled speech, the court said.

Chief Judge Lavenski R. Smith and Judges James B. Loken, Raymond M. Gruender, Duane Benton, Bobby E. Shepherd, Ralph R. Erickson, L. Steven Grasz, and David R. Stras joined the opinion.

Dissenting Judge Jane Kelly said that the statute does regulate expressive behavior in violation of the First Amendment because it prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship.

Bettina E. Brownstein of Little Rock, Ark., Lavey & Burnett, and the American Civil Liberties Union Foundation represented Arkansas Times. The Arkansas Attorney General’s Office represented the state.

The case is Ark. Times LP v. Waldrip, 2022 BL 214599, 8th Cir. en banc, No. 19-1378, 6/22/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com