Eighth Circuit Revives Suit Challenging Arkansas’ Pro-Israel Law

In a split decision, the appeals court found the law requiring state contractors to sign a pledge vowing to not boycott Israel violated free speech rights.

The Arkansas capitol building in Little Rock.

ST. LOUIS (CN) — An Arkansas law requiring businesses that contract with the state to pledge not to boycott Israel is unconstitutional, a split three-judge panel of the Eighth Circuit ruled on Friday.

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.

The 2-1 decision sent the issue back to federal court, where it was dismissed previously, prompting the appeal.

“The fundamental point that the court hammered home was that this law was an attempt to regulate contractors’ speech and association outside of their work for the government, outside of the scope of any work they performed for the government,” ACLU attorney Brian Hauss, who represented the Times in the initial hearing, said in an interview. 

“The First Amendment is crystal clear that when the government tries to restrict people’s First Amendment rights outside the scope of their government work, that’s unconstitutional.”

The appeals court majority wrote that 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.

“Considering the Act as a whole, we conclude that the term ‘other actions’ in the definition of ‘boycott Israel’ and ‘boycott of Israel’ encompasses more than ‘commercial conduct’ similar to refusing to deal or terminating business activities,” U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, wrote for the majority.

She continued, “Instead, the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court.”

U.S. Circuit Judge Michael Melloy, a George W. Bush appointee, joined Kelly on the majority.

“In the Eighth Circuit’s decision they point out that historically, the word boycott includes all of this expressive activity,” Hauss said. “I think that’s exactly what the law was targeting when it had this ‘other actions’ provision. It was sweeping in all of that pure speech and association, in addition to the expressive refusal to purchase a product.”

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

The decision was lauded by the Council on American-Islamic Relations (CAIR).

“Today’s federal ruling represents a critically important moment in the struggle to protect free speech here at home and advance human rights overseas,” CAIR National Executive Director Nihad Awad said in a statement. “From Arizona, to Texas, to Arkansas, numerous courts now recognize the obvious: states cannot require individuals or corporations to sign an oath pledging support for the Israeli government as a condition for working with a state government.” 

U.S. Circuit Judge Jonathan Kobes, a Donald Trump appointee, authored a dissent, finding 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.

“The easiest and most natural reading of the statute is constrained: ‘other actions’ is similar to the purely commercial terms preceding and modifying it,” he wrote. “I would interpret it accordingly and affirm the district court.”

Arkansas officials did not immediately respond to an email requesting comment.

“The Eighth Circuit has held that the law violates the First Amendment,” Hauss said. “The question is, what’s the remedy? And that’s what we’ll be addressing back in the district court.”

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