Questions about whether a law prohibiting companies from contracting with state agencies unless they agree not to boycott Israel restricts only conduct, or free expression as well, dominated oral arguments Wednesday before a federal appellate panel.
The Arkansas Times contends the law unconstitutionally infringes on the publication's right to freedom of speech and expression, while the attorney general's office says it doesn't go that far and even allows conforming businesses to simultaneously express any opinion they wish, including disagreeing with boycotts of Israel.
It's an economic prohibition, not an effort to regulate speech, the state's solicitor general, Nicholas Bronni, told a panel of the 8th U.S. Circuit Court of Appeals in a St. Louis courtroom.
But Brian Hauss, an attorney for the Arkansas Civil Liberties Union, which is representing the Times, told the panel, "The function of the law is to police speech," which the U.S. Constitution prohibits without a valid reason to protect the state's interests.
"The fact that there's no evidence of governmental interest supports the idea that what the statute is really targeted at is expression," he added. "The government is effectively picking sides in boycott movements."
The ACLU said that the Times doesn't boycott Israel, but "it objects to the government using economic leverage to dictate the newspaper's political expression" by refusing to reauthorize its advertising contract with the University of Arkansas System because the publication wouldn't sign the boycott pledge.
On Jan. 23, 2019, U.S. District Judge Brian Miller dismissed a lawsuit the Times had filed to challenge Act 710 of 2017, which had recently been enforced against the publication, and to have the law enjoined from enforcement. The law prohibits state entities from contracting with companies that won't certify that they aren't engaged in a boycott of Israel and won't engage in such a boycott throughout the contract period.
Miller said that when he first got the case, he expected to grant the injunction, but research into the matter surprised him and caused him to rule in the opposite direction. He acknowledged that his ruling differed from recent rulings in federal courts in Arizona and Kansas on similar laws involving boycotts of Israel.
He said that while the First Amendment forbids the government "from dictating what we see or read or speak or hear" and "protects political association as well as political expression," certification requirements for obtaining government benefits "that merely elicit information about an applicant generally do not run afoul of the First Amendment."
He said the Arkansas law concerns only "purchasing activities with respect to Israel."
"A boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct," he wrote. He said a 2006 U.S. Supreme Court case, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), is legally controlling. It said a decision to engage in a boycott of Israel is "expressive only if it is accompanied by explanatory speech," and, "Until then, the motivations behind a contractor's private purchasing decisions are entirely unknown to the public."
All three circuit judges on the panel Wednesday -- Jane Kelly and Michael Melloy, both of Cedar Rapids, Iowa, and Jonathan Kobes of Sioux Falls, S.D. -- asked Hauss and Bronni numerous questions over 40 minutes.
Hauss told the judges that the U.S. Supreme Court "recognized that the power of the government to regulate economic activity could not justify a complete suppression of a nonviolent, politically motivated boycott. And that's essentially the power that the government is claiming here, and that's the power the district court essentially gives them."
Kelly asked how Hauss would feel about the statute if it merely said a company cannot refuse to deal with Israel in business relations. Hauss said that even then, "the purpose of the statute is to get people to stop boycotting Israel, and so it's targeting the boycotting activity."
"Doesn't there have to be an expressive component to a real boycott?" Melloy asked. "If you don't tell anybody that's why you're not buying a product, what's the point of a boycott?"
Bronni said Miller correctly concluded that "refusing to buy or sell based on national origin is neither speech nor inherently expressive, whether the refusal is motivated by policy or prejudice."
He agreed with Kelly that the law could have been drafted differently, but he said it defines a boycott as a "refusal to deal" with Israel, which is a narrow definition. He added that "the boycott movement generally deals with things other than refusal to deal, and those things are mostly protected" by the First Amendment.
Melloy said the Arkansas law has two components: agreeing not to boycott Israel and having to certify that to the state. He asked if the certification doesn't bring out the expression component. But Bronni said: "It's not a political statement. You're just certifying a fact, not making a political statement," like when someone certifies he is at least 18 and old enough to vote but doesn't comment on the requirement.
"Is there a problem, though, with singling out a particular country and a particular religion?" the judge asked.
Bronni replied that through the Arkansas law, the government is targeting conduct, not religion.
"The government can prohibit conduct without running afoul of discrimination law," he said.
"If the government has the power to selectively target particular boycott movements, which is what the government is claiming here," Hauss said in a rebuttal argument, "we'll see legislatures in all states suppressing boycotts based on their political whims. The district court's order ... gives the government unchecked power to silence those voices based on viewpoint discrimination."
There is no timetable for when the panel is expected to issue an opinion.
Metro on 01/16/2020