ST. LOUIS — Lawyers for a weekly newspaper in Arkansas and state officials there will be in a federal appeals court in St. Louis on Wednesday in a case that could challenge state laws restricting boycotts of Israel and better define whether boycotts are constitutionally protected.
At issue is a 2017 Arkansas law that requires groups contracting with the state to certify that they’re not engaging in any practice that amounts to a boycott of Israel, and wouldn’t for the life of any contract.
After a state technical college required the certification in October 2018 from the Arkansas Times, CEO Alan Leveritt refused and the paper sued. The paper previously had dozens of small contracts each year with the college allowing the school to place advertisements.
ACLU lawyers and others representing the newspaper said in legal filings that the law violates the First Amendment by making contracts conditional on constitutionally protected political expression or association, writing that under a lower court ruling, “government officials of all political stripes will have a free hand to suppress disfavored boycotts based on nothing more than ideological hostility.”
Lawyers for Arkansas government officials argue the paper’s position is contradicted by two U.S. Supreme Court opinions. In their filings, they contend the law simply prohibits the state from contracting with companies that discriminate against Israel and does not regulate speech or “expressive conduct.”
“Contractors remain free to criticize Israel, denounce Arkansas’s law, and even advocate boycotting,” they wrote.
The case is in St. Louis because the city is home to the 8th U.S. Circuit Court of Appeals, which covers, Missouri, Arkansas, the Dakotas, Iowa, Minnesota and Nebraska.
The controversy has its roots in the boycott, divestment and sanctions, or BDS, movement, which is opposed to what supporters call the Israeli occupation of Palestine. More than two-dozen state legislatures have passed anti-boycott laws in response.
Arkansas passed their law, Act 710, in 2017. It does not apply to contracts under $1,000, or contractors who offer a 20% discount in lieu of agreeing to the certification process.
The newspaper’s December 2018 lawsuit said the law restricts contractors from engaging in activities that are protected by the First Amendment.
U.S. District Judge Brian S. Miller on Jan. 23 dismissed the lawsuit, saying that the First Amendment does not protect boycotts, and citing among other cases a unanimous 2006 U.S. Supreme Court decision that declined to overturn a federal law blocking funding for colleges that denied campus access to military recruiters.
Miller’s ruling said Act 710 doesn’t restrain the speech of contractors and said the paper failed to demonstrate that boycotts are protected by the First Amendment.
Miller also said that his legal research flipped his initial beliefs, writing, “I thought the law required a different outcome than the one ultimately reached.”
The paper’s lawyers appealed, saying that the St. Louis court has ruled that political boycotts are protected speech and “constitutionally safeguarded.” They also raise the specter of the government criminalizing “participation in disfavored boycotts of every political stripe — including boycotts of companies that support Planned Parenthood on one hand, or the National Rifle Association on the other — without even having to provide a viewpoint-neutral justification.”
Lawyers for state officials said a 1982 U.S. Supreme Court decision about a NAACP boycott of Mississippi businesses did not protect boycotts, but did protect speech, assembly and picketing in favor of a boycott.
A decision by the St. Louis court isn’t expected for months.