LITTLE ROCK, Ark. (AP) – A federal appeals court on Wednesday upheld Arkansas’ law requiring state contractors to pledge not to boycott Israel, ruling the restriction is not an unconstitutional violation of freedom of expression.
Last year, the US Court of Appeals for the 8th Circuit overturned a 2-1 ruling by a three-judge court panel that found the requirement unconstitutional. The Arkansas Times had sued to block the law, which requires contractors in the state to cut their fees by 20% if they don’t sign the recognizance.
“(The law) only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes wrote in the court opinion. “Because these business decisions are invisible to observers unless explained, they are not inherently expressive and do not involve the First Amendment.”
A federal judge in 2019 dismissed the Times lawsuit, ruling that boycotts are not protected by the First Amendment. A three-judge panel of the appeals court overturned that decision, and the state appealed to the full appeals court.
The American Civil Liberties Union, which represented the Times, announced its intention to appeal to the United States Supreme Court.
“We hope and expect the Supreme Court to settle things and reaffirm the nation’s historic commitment to provide strong protection against political boycotts,” said Brian Hauss, senior counsel for the Speech, Privacy & Technology project at the ACLU Foundation, in a statement.
The new ruling did not give details of how the judges decided, but at least one dissented, saying the law is written so broadly it could go beyond boycotts.
“One could imagine a business displaying anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the act with the intention of ‘limiting relations dealing with Israel’ generally,” Judge Jane Kelly wrote in her dissent. “And any of those behaviors would arguably fall within the prohibition.”
The Times lawsuit said the Pulaski Technical College at the University of Arkansas refused to enter into an advertising contract with the newspaper unless the newspaper signed the pledge. The newspaper is not engaged in a boycott against Israel.
“Today is a resounding victory for Arkansas’ anti-discrimination law and strengthens Arkansas’ relationship with our longtime ally, Israel,” said Republican Attorney General Leslie Rutledge, whose office defended the law, in a press release.
Republican lawmakers in Arkansas who drafted the 2017 law said it was not driven by a specific incident in the state. This followed similar restrictions enacted by other states in response to a movement encouraging boycott, divestment and sanctions from Israeli institutions and businesses over the country’s treatment of Palestinians. Israeli officials say the campaign masks a deeper goal of delegitimizing and even destroying the country.
Similar measures in Arizona, Kansas and Texas that were blocked were later allowed to proceed after lawmakers reduced the requirement so that it applied only to larger contracts. Arkansas law applies to contracts worth $1,000 or more.
Citing its anti-boycott law, Arizona last year sold millions of dollars in Unilever bonds following the Ben & Jerry’s subsidiary’s decision to stop selling its ice cream in the Israeli-occupied territories.
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