U.S. Supreme Court allows Arkansas ‘anti-BDS’ law to stand

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The Arkansas Times filed a federal lawsuit against the state, alleging that Act 710, a law requiring all private companies in business with the state to refrain from engaging in boycotts of Israel, was an infringement on the newspaper’s Free Speech rights and led to a canceled advertising contract and financial losses.  After years of litigation in the lower courts, the U.S. Supreme Court declined to hear a case calling the law unconstitutional.

Key Players

University of Arkansas Pulaski Technical College (UAPTC) is a two-year, public community college located in North Little Rock, Arkansas. In 2017, the school became part of the larger University of Arkansas System, a public system comprising 18 campuses, including an e-campus.

The Arkansas Times, a news outlet founded in 1974 and headquartered in Little Rock, had an advertising contract with the state and ran ads for UAPTC. 

Alan Leveritt, CEO of the Times, was asked to sign an anti-boycott pledge after the law went into effect. After his refusal, UAPTC declined to engage in further agreements with the publication. 

Further Details

In 2017, Arkansas state legislators passed Act 710, which was one of many pieces of state legislation collectively dubbed “anti-BDS” (boycotts, divestment, and sanctions) laws, specifically prohibiting boycotts against Israel. The law required Leveritt to sign a pledge not to boycott Israel in order to receive state advertising funds. Similar legislation nationwide blocks boycotts against gun makers, oil companies, and other controversial industries.

After UAPTC’s refusal to enter into any future contracts with the Times, the media outlet filed a suit that named all members of the University of Arkansas Board of Trustees as co-defendants. The Times’ legal effort was supported by the ACLU of Arkansas, which argued in a news release that Act 710 created “an ideological litmus test on government contractors’ protected political beliefs.”

Anti-BDS laws have become increasingly common in the United States. The Jewish Virtual Library reported that between 2015 and 2021, 35 states passed some form of related legislation. Anti-BDS laws have faced similar legal challenges in Kansas, Arizona, and other states.

Arkansas affirmed that the law was meant not to inhibit speech but to prevent economic harm to and promote healthy international commerce with a valued ally. According to the law, “Boycotts and related tactics have become a tool of economic warfare that threaten the sovereignty and security of key allies.”

On Jan. 23, 2019, U.S. District Court Judge Brian S. Miller, nominated by former President George W. Bush, found that the state had not infringed on the Times’ First Amendment rights. Miller ruled that a boycott of any kind “is not speech, inherently expressive activity, or subject to independent constitutional protection.” 

Miller rejected the Times’ motion for a preliminary injunction against the law and dismissed the case with prejudice, meaning the claim could not be refiled in that court.  

The Times appealed, and in 2020 the case went before a three-judge panel of the 8th U.S. Circuit Court of Appeals. The panel noted, as the act states, “It is the public policy of the United States, as enshrined in several federal acts, to oppose boycotts against Israel,” but cited precedent set by NAACP v. Claiborne Hardware Co., a case in which a boycott of white-owned businesses by Black Americans was found to be protected speech. 

The appellate court voted 2-1 to reverse the lower court’s decision. In the majority opinion, Circuit Judge Jane Kelly, nominated by former President Barack Obama, found that not only did the original decision contravene court precedent, but that the term “boycott” was left too vague in the text of the law, potentially allowing for overbroad enforcement. Kelly also found the phrase prohibiting “other actions” to be similarly overbroad.

In dissent, Circuit Judge Jonathan Kobes, nominated by former President Donald Trump, took issue with Kelly’s focus on the breadth of “other actions,” writing that the phrase should reasonably be interpreted as referring to commercial actions harmful to Israeli-American trade, which are not protected under the First Amendment, rather than verbal, expressive speech, which is protected.

The decision struck down Act 710, leading the ACLU of Arkansas to declare “victory” in a news release. 

On Dec. 26, 2021, however, The Media Line reported the 8th Circuit had accepted an appeal by the state to rehear the case en banc, as a whole court, rather than the customary three-judge panel. Attorney Joseph Sabag, also executive director of the Israeli-American Coalition for Action, noted, “An en banc appeal for a rehearing actually being accepted is more unusual than the Supreme Court taking up a case.”

The Media Line also reported that recent legal proceedings indicated the state had a good chance of prevailing, as legal challenges in Kansas and Arizona had left slightly amended versions of the original anti-BDS laws intact. ACLU attorney Brian Hauss told The Media Line that, should the full 8th Circuit rule for Arkansas, the decision would be appealed to the Supreme Court. 

Outcome

8th Circuit Court rules in favor of Arkansas, says commercial conduct is not protected speech

On June 22, 2022, the full 8th Circuit ruled that Act 710 was constitutional, Reason reported. 

The court came to this decision on the grounds that the law “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 court therefore reinstated the district court ruling that economic conduct does not qualify as protected speech. 

In the majority opinion, Kobes wrote that Act 710 did not require the Times “to publicly endorse or disseminate a message. Instead, the certification targets the noncommunicative aspect of the contractors’ conduct—unexpressive commercial choices.”

The en banc decision was 10-1, with only Kelly dissenting, The Jerusalem Post reported. Reason wrote that Kelly maintained her position that the “other actions” phrase was too broad and could lead to infringement on Free Speech. 

SCOTUS turns down appeal

The ACLU and Leveritt appealed the ruling to the U.S. Supreme Court.

On Feb. 21, 2023, the Supreme Court declined to hear the appeal, letting the Arkansas law stand. 

Leveritt said he refused to let the Arkansas Times take a political position in return for advertising money.

“We’re not going to sign any political pledges in return for advertising,” he said. “The Supreme Court can ignore our First Amendment rights, but we’ll continue to exercise them vigorously.”