Suit over Israel boycott law tossed
Judge: State contracts clause not afoul of First Amendment
The Arkansas Times’ lawsuit challenging a state law requiring anyone contracting with a state agency to agree not to boycott Israel for the duration of the contract was thrown out Wednesday after a federal judge said a boycott isn’t protected by the First Amendment.
The free weekly publication, backed by the American Civil Liberties Union of Arkansas, sued the trustees of the University of Arkansas System in December, after it lost a contract of many years to publish advertisements for the University of Arkansas-Pulaski Technical College because it wouldn’t agree to the newly enforced condition.
Act 710 of 2017 prohibits state entities from entering into contracts with companies for goods or services unless the companies certify that they aren’t engaged in a boycott of Israel and won’t engage in a boycott throughout the contract period. It creates an exception for any business agreeing to give the state a discount of 20 percent below the price of any similar business that agrees to the certification.
Although the Times wasn’t boycotting Israel and said it had no plans to do so, Publisher Alan Leveritt said it was the principle of the matter.
“As journalists, citizens
and taxpayers, we dispute the right of the state to impose an ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit,” he wrote.
Chief U.S. District Judge Brian Miller heard arguments Jan. 4 on the Times’ request for a preliminary injunction to block the law’s enforcement until its constitutionality was decided. But on Wednesday, Miller not only denied the injunction request, but he also dismissed the entire case. He indicated that the research leading to his ruling surprised even himself, indicating that he initially thought he would grant an injunction.
“I routinely instruct jurors to follow my instructions on the law, even if they thought the law was different or should be different,” he said in his order. “This case presents an occasion in which I must follow the same principle.”
Miller also noted that his ruling “diverges from decisions recently reached by two other federal district courts,” citing a case from Arizona, Jordahl v. Brnovich, and a case from Kansas, Koontz v. Watson.
In Jordahl, the ACLU challenged a similar law in Arizona that was supported by nine other states, including Kansas and Arkansas. A federal district judge issued a preliminary injunction in October that blocked the law’s enforcement and is now on appeal to the 9th U.S. Circuit Court of Appeals.
In Koontz, a federal district judge in Kansas issued a preliminary injunction on Jan. 30, 2018, prohibiting that state from enforcing a similar law. The Legislature then enacted changes to the law so the anti-boycott certification doesn’t apply to individuals or sole proprietors, applies only to companies that conduct more than $100,000 worth of business with the state and now requires companies that are required to sign the certification to say they aren’t engaged in a boycott of goods or services from Israel “that constitute an integral part of business conducted or sought to be conducted with the state.” The ACLU then dropped its lawsuit.
ACLU attorney Brian Hauss, who argued on the ACLU’s behalf in Miller’s court, has said that while Kansas lawmakers have “scaled back this law, … it still runs afoul of the First Amendment,” in that its fundamental purpose — “to suppress political boycotts of Israel and chill protected expression” — remains unconstitutional.
Holly Dickson, legal director of the ACLU of Arkansas, said Wednesday, “We disagree with the district court’s decision, which contradicts two recent federal court decisions and which would radically limit the First Amendment right to boycott.”
Miller said in his order that while the First Amendment forbids the government “from dictating what we see or read or speak or hear” and “protects political association as well as political expression,” certification requirements for obtaining government benefits “that merely elicit information about an applicant generally do not run afoul of the First Amendment.”
He said the requirements “become constitutionally problematic” when they require an applicant to certify that it won’t engage in protected speech activities or require an applicant to endorse a particular message. But the Arkansas law, he said, concerns a contractor’s “purchasing activities with respect to Israel” and “does not include criticism of Act 710 or Israel, calls to boycott Israel, or other types of speech.”
“A boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct,” Miller’s order said.
He cited a 2006 U.S. Supreme Court case, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), in which the court rejected a challenge to a law that denied federal funding to law schools unless they allowed military recruiters to have equal access to campuses. The law schools said the law violated the First Amendment, but the high court unanimously held that the actions “were expressive only because the law schools accompanied their conduct with speech explaining it.”
“FAIR is controlling,” Miller wrote. “Like the law schools’ decision to prevent military recruiters from coming to campus, the decision to engage in a primary or secondary boycott of Israel is ‘expressive only if it is accompanied by explanatory speech.’ Until then, the motivations behind a contractor’s private purchasing decisions are entirely unknown to the public.”