8th Circuit Rules Boycotts Are Not Protected Free Speech

ST. LOUIS — An Arkansas law targeting boycotts of Israel did not infringe on constitutionally protected free speech rights because it was intended to serve “a purely commercial purpose,” the 8th U.S. Circuit Court of Appeals ruled on Wednesday.

The American Civil Liberties Union, which represented the Arkansas Times newspaper in the case, has already announced that it plans to appeal the ruling to the Supreme Court.

A request for emergency consideration would go to Justice Brett Kavanaugh, who is the circuit justice for the region.

Underlying the ruling is the controversy surrounding the Boycott, Divestment and Sanctions movement. The movement is a Palestinian-led effort to pressure Israel by economic means to meet what adherents say are its obligations under international law.

Among other things, members of the movement want Israel to withdraw from the occupied territories, remove the separation barrier in the West Bank, and grant full equality to Arab-Palestinian citizens living in Israel.

The Israeli government has poured millions in promoting the view that the movement is antisemitic and having it banned wherever possible.

Arkansas is one of as many as 30 states that have passed laws to thwart the spread of the movement’s boycotts and disinvestment efforts. 

Arkansas Act 710, adopted in 2017, prohibits state entities from contracting with private companies unless the contract includes a certification that the company “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.”

The Arkansas Times refused to sign a certification promising not to boycott Israel, and lost a longstanding contract it had with the University of Arkansas-Pulaski Technical College.

It promptly sued for a preliminary injunction, arguing that the certification violates the First Amendment in two ways: (1) by placing an unconstitutional condition on the award of government contracts; and (2) by compelling speech. 

The district court dismissed the suit, holding that economic boycotts do not implicate the First Amendment because they are neither speech nor expressive conduct.

Sitting en banc on Wednesday, a divided 8th Circuit concluded the certification requirement does not violate the First Amendment because the law was intended to regulate only the economic activity of state contractors and not to place a government restriction on political speech.

“It does not ban [the] Arkansas Times from publicly criticizing Israel, or even protesting the statute itself,” wrote U.S. Circuit Judge Jonathan Kobes, who was appointed to the court by former President Donald Trump.

“It only prohibits economic decisions that discriminate against Israel,” he said.

But Judge Jane Kelly, who was appointed to the circuit by former President Barack Obama, wrote in dissent that under the law there was no light or distinction between economic actions and political expression by companies, like the Arkansas Times, that do business with state entities.

“It seems highly unlikely that a lay-contractor unfamiliar with this lawsuit would give the phrase ‘boycott of Israel’ the same limited definition the state now urges and the court accepts,” she wrote. 

“Instead, any contractor who does not want to risk violating the terms of its contract might very well refrain even from activity that is constitutionally protected,” Kelly added.

Brian Hauss, the ACLU attorney representing the newspaper, said in a statement that the court’s conclusion that politically motivated consumer boycotts are not protected by the First Amendment “misreads Supreme Court precedent and departs from this nation’s longstanding traditions.” 

“It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since,” he continued. “We hope and expect that the Supreme Court will set things right and reaffirm the nation’s historic commitment to providing robust protection to political boycotts.”

The American Jewish Committee, which supports this and other boycott laws, applauded the 8th Circuit in its own statement, recognizing the case is “the first appellate test of laws that combat the Boycott, Divest and Sanctions movement,” which it characterized as having the “primary aim” of eliminating the state of Israel. 

“The 8th Circuit unequivocally affirmed that such laws do not infringe on the First Amendment. As the court noted, Arkansas has broad power to regulate economic activity, and taking a position on a boycott does not inhibit free speech,” the committee said.

But Alan Leveritt, publisher of the Arkansas Times, strenuously disagreed in a comment published in his newspaper.

“We are obviously disappointed and note that these laws, which were originally passed in over 30 states, have been overturned in every court except this one,” Leveritt said. “We consider being banned from doing business with our state government for refusing to sign a pledge not to boycott Israel a ridiculous government overreach that has nothing to do with Arkansas. 

“More importantly, in our particular case it requires the Arkansas Times to take a political position in return for advertising. We don’t do that,” he said. “I acknowledge that this ruling will continue to damage us financially. The good news is that we have received tremendous support from our readers to the point that we now have over 3,000 paid online subscribers, which has done much to cushion the financial impact of this law. In meetings with our ACLU attorneys this morning we anticipate an appeal to the U.S. Supreme Court.”

Meanwhile Arkansas Attorney General Leslie Rutledge called the ruling “a resounding victory for Arkansas’ anti-discrimination law and reinforces Arkansas’ relationship with our longtime ally, Israel.”

Dan can be reached at [email protected] and @DanMcCue