ST. LOUIS (CN) – An Arkansas newspaper argued before the Eighth Circuit on Wednesday that a state law requiring businesses that contract with the state to pledge not to boycott Israel is unconstitutional.
The Arkansas Times is challenging 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 paper, which for years has contracted with a state public college to publish ads for the school.
U.S. District Judge Brian S. Miller, a George W. Bush appointee, ruled in favor of the state last year, finding that boycotts are not entitled to constitutional protection. The decision prompted the appeal to the St. Louis-based Eighth Circuit.
The three-judge panel on Wednesday questioned ACLU attorney Brian Hauss, who was representing the Times, on how the precedent of NAACP v. Claiborne Hardware effected this case. That landmark 1982 Supreme Court ruling held that states cannot prohibit peaceful advocacy of a politically motivated boycott.
“They are a form of expression on public issues resting on the highest rung of hierarchy on First Amendment values,” Hauss told reporters outside the courthouse after the hearing. “That’s why states can’t outlaw boycott movements.”
Currently, 26 states have similar laws and courts have ruled in the ACLU’s favor in cases in Kansas, Arizona and Texas.
Hauss said a unique clause in the Arkansas law undermines the state’s argument that it is tailored to solely address discriminatory conduct. That clause allows businesses to still contract with the state even if they don’t sign the pro-Israel pledge in exchange for a 20% discount on the cost of the services offered by the business.
“What this shows is if the state was putting this forward as an anti-discrimination law, the state would not say, ‘OK you can get out of anti-discrimination if you give us a certain amount of money,’” Hauss told reporters. “That’s not how the state enforces anti-discrimination. I think the fact the state is willing to let contractors out of the certification in exchange for a discount [shows] that the real purpose of this law is political messaging and that’s why it violates the First Amendment.”
Hauss concluded his rebuttal time by arguing that allowing such a law to exist creates a slippery slope that could allow states to specifically target groups that those governments find to be ideologically hostile, such as Planned Parenthood or the National Rifle Association.
“Americans across the political spectrum use boycotts as a tool for advancing their political beliefs,” Hauss told reporters. “They are essential to the poorly financed causes of little people and that’s why they deserve constitutional protection.”
Arkansas countered with the argument that the law is designed to focus on discriminatory conduct and not expression.
“I am confident that the Eighth Circuit will agree with the District Court that Arkansas may prevent discrimination against one of America’s most important allies,” Arkansas Attorney General Leslie Rutledge said in a statement.
Arkansas Solicitor General Nicholas J. Bronni argued for the state before Eighth Circuit. He also focused on the Claiborne decision.
“What the court doesn’t say is that a refusal to deal is protected by the First Amendment,” he told the three-judge panel.
That prompted U.S. Circuit Judge Michael J. Melloy, a George W. Bush appointee, to press him further about the language in the Claiborne decision.
“The language has to be read in context,” Bronni answered. “We’re talking about a civil rights case in the 1960s or 1970s. The Supreme Court had to paint with extremely broad strokes to make sure that kind of action was unacceptable.”
Melloy asked how the law does not single out a single country or religion, which he added it can’t do.
“The government is targeting the conduct, it is not targeting the expression,” Bronni told the court. “We’re not barring the expression of ideas.”
U.S. Circuit Judges Jane L. Kelly, a Barack Obama appointee, and Jonathan A. Kobes, appointed by President Donald Trump, joined Melloy on the panel. The court took the arguments under advisement and there is no timetable for a decision.