Appeals panel upholds dismissal of Arkansas Times challenge to state’s anti-boycott law

ACLU attorney vows to turn to U.S. Supreme Court

A federal appeals court ruled Wednesday morning that a district court judge was right to dismiss a lawsuit filed by the Arkansas Times challenging an Arkansas law that added a pledge to not boycott Israel as a part of vendor contracts with the state of $1,000 or more.

The ruling came after a full panel of judges heard arguments over whether or not Act 710 of 2017 violates free speech protections in the U.S. Constitution.

The 10-judge panel’s main opinion found it likely that the Arkansas Supreme Court would find the anti-boycott law to govern solely commercial — rather than expressive — conduct.

“It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel,” the opinion stated. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

The court’s opinion stated that a past U.S. Supreme Court ruling in a different case “held that First Amendment protection does not extend to non-expressive conduct intended to convey a political message.”

Several states have enacted anti-boycott laws 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 Arkansas Times, a news publication in Little Rock, and attorneys with the American Civil Liberties Union sued in 2018 to block the law. The ACLU has challenged similar laws in other states.

Brian Hauss, a staff attorney for the ACLU, in a statement called the judges' main opinion "wrong" and said a ruling will be sought from the U.S. Supreme Court.

"The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent and departs from this nation’s long standing traditions," Hauss said, calling boycotts "a fundamental part of American political discourse."

"We hope and expect that the Supreme Court will set things right and reaffirm the nation’s historic commitment to providing robust protection to political boycotts," Hauss said.

Arkansas Attorney General Leslie Rutledge — with support from 16 states — had requested that the 8th U.S. Circuit Court of Appeals reconsider a February 2021 ruling by a three-judge panel that reversed a federal district judge’s dismissal of the Times’ lawsuit.

Rutledge, in a statement, praised the ruling.

“Today is a resounding victory for Arkansas’s anti-discrimination law and reinforces Arkansas’s relationship with our long-time ally, Israel,” said Attorney General Leslie Rutledge. “Arkansas had to spend taxpayer resources proving that Arkansas Times is not entitled to discriminate.”

The opinion Wednesday morning from a panel of 10 judges included a formal dissent from U.S. Circuit Judge Jane Kelly.

“An examination of the Act as a whole reveals that the legislature intended to prohibit commercial and expressive behavior,” Kelly wrote, citing how the law allows for the state to “consider specified ‘type[s] of evidence’ to determine whether ‘a company is participating in a boycott of Israel,’” including a company’s statement that it is participating in such a boycott.

Kelly also cited how the law allows for the state to consider “evidence” of whether a boycott has taken place “at the request, in compliance with, or in furtherance of calls for a boycott of Israel.”

Kelly stated in her dissenting opinion that “at a minimum, the State can consider a company’s speech and association with others,” and that in “this way” the law “implicates the First Amendment rights of speech, assembly, association, and petition recognized to be constitutionally protected boycott activity.”