Arkansas can't force businesses that contract with the state to not boycott Israel: court

anti-Israel protest
A demonstrator chants slogans during a pro-Palestinian protest in Times Square, in the Manhattan borough of New York, October 18, 2015. |

An appeals court has ruled against an Arkansas law passed in 2017 that prohibits the state from contracting with or investing in businesses that support boycotting Israel.

A three judge panel of the United States Court of Appeals for the Eighth Circuit ruled 2-1 last Friday against the Arkansas Act 710 of 2017, reversing a lower court decision.

The case was centered on the University of Arkansas Board of Trustees' refusal to renew the advertising contract of the Arkansas Times when the paper would not agree to never officially boycott Israel.

Circuit Judge Jane Kelly authored the majority opinion, in which she argued that “the Act imposes a condition on government contractors that implicates their First Amendment rights.”

“Supporting or promoting boycotts of Israel is constitutionally protected,” wrote Kelly, “yet the Act requires government contractors to abstain from such constitutionally protected activity.”

“… the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime’ … Such a restriction violates the First Amendment.”

Circuit Judge Jonathan Kobes dissented, arguing that the Act was meant “to reduce the company’s business interactions with Israel in a discriminatory way” and for any ambiguous parts of the law, it could be given “a constitutionally-permissible interpretation.”

“… states have a broad mandate to enact legislation evincing the policy choices of their citizens. We may only hold states back in achieving those goals when they do so by unconstitutional means,” continued Kobes.

“Nothing in the text of the operative provision itself suggests overreach (regulation of protected speech) by the Arkansas Legislature, and we should not impute an unconstitutional meaning to a statute that is benign on its face.”

The American Civil Liberties Union of Arkansas, which helped to represent the Arkansas Times, celebrated the appeals court panel decision as a win for freedom of speech.

“It’s a good day for the freedom of speech in Arkansas,” said Holly Dickson, ACLU of Arkansas executive director, in a statement last Friday.

“Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test. Free speech isn’t a privilege you pay for, it’s a right guaranteed to every Arkansan.”

As of 2019, according to Human Rights Watch, 27 states have passed laws that prohibit entities from doing business with the government if they refuse to reject the pro-Palestinian Boycott Divestment Sanctions movement against Israel.

Proponents of the state laws argue that the BDS movement is inherently anti-Semitic, with the United States Senate passing a bill supporting such measures in 2019.

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