Halt boycott-law suit, state urges U.S. court

Hearing scheduled today on injunction of ban

The Arkansas Times newspaper’s challenge to a law prohibiting state entities from contracting with companies that boycott Israel or won’t pledge not to should be thrown out for failing to raise a valid First Amendment issue, an attorney for the state argued Thursday. The state’s motion to dismiss the Times’ Dec. 11 lawsuit was filed on the eve of today’s hearing — scheduled to begin at 11 a.m. before Chief U.S. District Judge Brian Miller — on whether a preliminary injunction is warranted to immediately halt enforcement of the law. The newspaper, backed by the American Civil Liberties Union of Arkansas, contends that Act 710 of 2017, which took effect on Aug. 1, 2017, violates free-speech protections in the U.S. Constitution and should be declared unconstitutional. Although the Times has never boycotted Israel nor advocated for a boycott, publisher Alan Leveritt said he was surprised when the University of Arkansas-Pulaski Technical College asked the paper this year to sign a certification that it wouldn’t participate in a boycott of Israel as a condition of the college’s advertising contract with the paper. “It is not the government’s place to decide what causes Arkansans can or cannot support,” said Leveritt, publisher of the weekly paper. He also said, “Campuses in the University of Arkansas system have been advertising with us for years, so we were shocked and more than a little troubled when they sent over what looked like a loyalty oath as a condition of payment.” In passing the law, Arkansas legislators described Israel as being a “prominent target” of boycotts. The law states that companies refusing to deal with Israel “make discriminatory decisions on the basis of national origin that impair those companies’ commercial soundness.” The law prohibits public entities from entering contracts for services, supplies, information technology or construction unless the contract “includes a written certification that the person or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.” The law says the requirement doesn’t apply to contracts of less than $1,000 or to businesses that offer to provide goods or services at a cost of at least 20 percent less “than the lowest certifying business.” In a Dec. 28 brief opposing a preliminary injunction, and again in a motion to dismiss filed Thursday, the attorney general’s office said the law “merely required Plaintiff to execute a truthful certification that it is not currently boycotting Israel and will not do so for the contract’s duration.” The briefs say the Times “fails to state a claim under the First Amendment law because it lacks standing to pursue one of its First Amendment theories, and because boycotting Israel, as defined by Arkansas law, is not protected First Amendment activity. Rather, as the Supreme Court has held repeatedly, boycotting is merely non-expressive conduct.” The attorney general’s office also noted that before filing the lawsuit, the free alternative newsweekly published articles that were critical of Act 710. “Indeed, on Aug. 30, Sept. 1, and Oct. 1, 2018, Plaintiff published a series of blog posts urging a ‘willing plaintiff’ to challenge the Act and retain Plaintiff’s current counsel in doing so, until it finally decided to challenge the Act itself after failing to rustle up anyone who would.” Although the law governed “dozens” of the paper’s prior contracts with the college, it wasn’t until October, 14 months after the law took effect, that the paper balked at certifying that it wouldn’t boycott Israel for the duration of the short-term advertising contracts it was then negotiating with the college, Assistant Solicitor General Dylan L. Jacobs argued. The Times also refuses to avoid the certification requirement by selling its advertising to the college at a 20 percent discount, Jacobs said. “As a result of its refusals to comply with the Act’s provisions, [the Times] alleges that it lost two advertising contracts with the college and that it anticipates losing more,” he noted. The state says the paper hasn’t established standing to pursue the claim, such as an injury the law has caused, because it hasn’t said it intends to boycott or wants to boycott but has censored itself in order to avoid losing the contract. According to the state, when Act 710 took effect, Arkansas became the 26th state to prohibit public contracting with companies that boycott Israel or prohibit public investment in companies that boycott Israel.