A full panel of federal appeals court judges Tuesday heard arguments in the high-profile fight over the state's anti-boycott law, with the judges frequently asking questions about the law's use of the term "boycott" during the hearing.
The legal dispute is over a 2017 Arkansas law, Act 710, that added a pledge to not boycott Israel as a part of vendor contracts with the state of $1,000 or more.
In 2018, news publication Arkansas Times and attorneys with the American Civil Liberties Union sued to block the law, in court documents stating that it violates free speech protections in the U.S. Constitution.
"So, in your view, is it fatal to Arkansas that they have used the term boycott rather than some other term?" asked Judge Jane Kelly, directing her question to American Civil Liberties Union attorney Brian Hauss.
"Your honor, I think the fact that Arkansas' use of the term boycott is a clear indication that the statute issue here is targeted at the expressive element of the activity," Hauss said. "But even if they didn't use the term boycott, insofar as they're requiring government contractors to disavow participation in boycotts, the statute is unconstitutional at the very least to that extent."
Arkansas Attorney General Leslie Rutledge and other attorneys for the state have argued in court documents that a boycott of Israel "is not inherently expressive" and that the law "does not prohibit anyone from criticizing Israel, condemning Act 710, or even advocating boycotting."
Nicholas Bronni, solicitor general for the state's attorney general's office, said Tuesday that "the certification here is just an ordinary routine document that the people execute all the time."
He continued: "It's not the kind of thing that would ever be seen as sending a message."
The case docket listed 10 judges as hearing the arguments, described as a videoconference hearing.
Bronni responded to a question from Kelly about whether the law's use of the word boycott "complicated matters." He referred to an earlier case, NAACP v. Claiborne Hardware Co., which involved a boycott of white merchants launched in 1966 by Blacks seeking equality and racial justice.
In that earlier case, the U.S. Supreme Court found that states can regulate economic activity, but there is no "comparable right to prohibit peaceful activity such as that found in the" boycott described in the case. Both sides in the dispute over the state's anti-Boycott, Divestment and Sanctions law have made references to the NAACP v. Claiborne case to bolster their arguments.
On Tuesday, Bronni told judges that "Claiborne says there are many elements at issue here, there are many things that are protected, many of which that are not," going on to list assembly, speech and "efforts to persuade" as found by the U.S Supreme Court to be protected in that case.
Bronni continued: "It's very clear that all Arkansas has prohibited is state contractors from engaging in certain economic conduct. So I think focusing on the word boycott, in some sense, misses the point."
The ACLU has challenged similar laws in other states. The state laws have come about in contrast to the Boycott, Divestment and Sanctions movement, which advocates for economic measures against Israel because of actions described by supporters of the movement as human-rights violations against Palestinians.
The latest hearing came about after Rutledge -- with support from 16 states -- requested that the 8th U.S. Circuit Court of Appeals reconsider a February ruling by a three-judge panel that reversed a federal district judge's dismissal of the Times' lawsuit.
All of the 16 states signing onto a legal brief in support of Rutledge were represented by Republican attorneys general. Rutledge is also a Republican.
The Arkansas Times on its website has said it has never boycotted Israel nor advocated editorially for a boycott.
In court documents, the Arkansas Times has stated that it "wishes to remain absent from the debate over boycotts of Israel," and the state law "is an unconstitutional attempt to conscript the Arkansas Times into that debate."
Various other groups have also filed friend-of-the-court briefs, some backing Rutledge and others, like the Reporters Committee for Freedom of the Press -- joined by 15 journalism organizations, including the National Press Club, Society of Professional Journalists and the Association of Alternative Newsmedia -- have filed legal briefs in support of the Times.
The lawsuit was filed against the 10 members who make up the University of Arkansas board of trustees. Court documents state that the University of Arkansas-Pulaski Technical College asked the Times to sign a certification to not engage in a boycott of Israel as a condition of an advertising contract.
The lawsuit claimed lost advertising revenue. The state law does not require a pledge from a contractor that "offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business," the law states.