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Arkansas asks full Eighth Circuit to reinstate pro-Israel law

A three-judge panel of the appeals court previously found the law requiring state contractors to sign a pledge not to boycott Israel was unconstitutional.

ST. LOUIS (CN) — A lawyer for Arkansas urged the en banc Eighth Circuit on Tuesday to revive a state law requiring businesses that contract with the state to pledge not to boycott Israel.

A three-judge panel of the St. Louis-based appeals court found the law unconstitutional last February in a 2-1 decision.

The Arkansas Times challenged the 2017 law, which it claims forces businesses to take a political stance in violation of the First and 14th Amendments. In 2018, the American Civil Liberties Union filed a lawsuit on behalf of the newspaper, which for years has contracted with a state public college to publish ads for the school.

In a teleconference hearing Tuesday morning, attorneys for both sides centered arguments on how the precedent of NAACP v. Claiborne Hardware – a landmark 1982 U.S. Supreme Court ruling that held states cannot prohibit peaceful advocacy of a politically motivated boycott – affected this case.

They also sparred over how the law affects expressive interest.

Arkansas Solicitor General Nicholas J. Bronni argued that the public does not pay attention to what contractors buy, but he said even if the customer notices that the contractor’s purchases do not include Israeli goods, they still don’t know why.

“It might be a better price point, better quality, or supply chain,” Bronni told the court.

ACLU attorney Brian Hauss, representing the Times, countered during his rebuttal.

“I think what's controlling to the compelled speech analysis is what we've seen is not whatever separate definitions the government has taken away from some other part of the statute, because what members of the public are going to see is the compelled statement saying, ‘I hereby certify that I'm not participating in a boycott of Israel,’ whatever that means,” Hauss told the court.

The judges grilled Hauss on the definition of boycott and the difference between boycott and regulation as it pertains to the Arkansas law.

Hauss highlighted the long tradition of boycotts in the United States going back to the Boston Tea Party. He also attacked Arkansas’ claim of governmental interest due to a clause in the law that says contractors do not have to sign the pro-Israel statement if they give the state a 20% discount on services.

“That ‘Get Out of Jail Free card’ severely undercuts any compelling governmental interest the government may claim here,” Hauss told the court.

U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, questioned Bronni whether the use of the term “boycott” in the law complicated the matter. Kelly wrote the majority opinion for the three-judge panel in February.

“In looking at the definition here, it's very clear that all Arkansas has prohibited is costing contractors from engaging in certain economic conduct,” Bronni said. “So, I think focusing on the word boycott somewhat dismisses the point.”

In February’s split decision, the majority found the law is ambiguous because the definition “boycott Israel” is open to more than one plausible construction. To resolve the ambiguity, the court considered the law as a whole to interpret legislative intent.

The decision was based on how a provision of “other actions” included in the law prohibited constitutionally protected activity.

U.S. Circuit Judge Michael Melloy, a George W. Bush appointee, joined Kelly in the February decision.

U.S. Circuit Judge Jonathan Kobes, a Donald Trump appointee, authored a dissent, writing that the “other actions” phrase “is a catch-all for commercial activities that do not fit the first two categories, but have the same purpose — to reduce the company’s business interactions with Israel in a discriminatory way.”

Kobes wrote that the majority’s interpretation of the law is inconsistent when considered with other legislative findings.

Kelly and Kobes were part of Tuesday's en banc hearing, while Melloy was not.

Currently, 26 states have similar laws and courts have ruled in the ACLU’s favor in Kansas, Arizona and Texas.

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