LITTLE ROCK, Arkansas ( Associated Press) — A federal appeals court on Wednesday upheld an Arkansas law requiring government contractors to pledge not to boycott Israel, finding the restriction is not an unconstitutional violation of free speech.
The full U.S. Court of Appeals for the 8th Circuit overturned last year’s 2-1 ruling by a three-judge panel that found the demand unconstitutional. The Arkansas Times has filed a lawsuit to block a law that would require state contractors to cut their fees by 20% if they don’t sign a commitment.
“(The law) only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes wrote in the court’s opinion. “Because these commercial decisions are invisible to observers unless explained, they are inherently non-expressive and do not imply the First Amendment.”
In 2019, a federal judge dismissed the Times’ lawsuit, ruling that boycotts were not protected by the First Amendment. A three-judge panel of the Court of Appeals overturned the decision, and the state filed an appeal to the full Court of Appeals.
The American Civil Liberties Union, which represents the Times, said it plans to appeal to the US Supreme Court.
“We hope and expect the Supreme Court to put things right and reaffirm the nation’s historic commitment to providing strong protections for political boycotts,” Brian Houses, senior staff lawyer for the ACLU Foundation’s Speech, Privacy and Technology Project, said in a statement.
The new ruling does not provide a detailed description of the judges’ decisions, but at least one person disagreed, saying the law is written so broadly that it could go beyond boycotts.
“You can imagine a company posting anti-Israel posters, donating to a boycott of Israel, calling on others to boycott Israel, or even publicly criticizing the act with the intent to “restrict commercial relations with Israel” in general. Judge Jane Kelly wrote in her dissent. “And any such behavior is possibly prohibited.”
The Times lawsuit alleges that the University of Arkansas’ Pulaski Technical College refused to enter into an advertising contract with the paper unless the paper signed the undertaking. The newspaper is not involved in the boycott of Israel.
“Today is a resounding victory for Arkansas’ anti-discrimination law, strengthening Arkansas’s relationship with our longtime ally, Israel,” Republican Attorney General Leslie Rutledge, whose office defended the law, said in a statement.
Republican lawmakers in Arkansas who drafted the 2017 law said it was not prompted by a specific incident in the state. This followed similar restrictions imposed by other states in response to a movement promoting boycotts, divestments and sanctions against Israeli institutions and businesses due to the country’s treatment of the Palestinians. Israeli officials say the campaign is masking a deeper goal of delegitimizing and even destroying the country.
Similar measures in Arizona, Kansas and Texas, which had been blocked, were later allowed to apply after lawmakers narrowed the requirement to only apply to larger contracts. Arkansas law applies to contracts of $1,000 or more.
Citing its anti-boycott law, Arizona sold millions of dollars worth of Unilever bonds last year in connection with a decision by a subsidiary of Ben & Jerry to stop selling its ice cream in Israeli-occupied territories.