US federal court nixes Arkansas anti-BDS law

American Jewish Committee issues statement of disappointment at appeals court ruling deeming state law requiring state contractors to promise not to boycott Israel violates First Amendment.

By  AP and ILH Staff   02-14-2021 18:01

The court said the law is written so broadly that it would also apply to vendors that support or promote a boycott | Photo: Erik McGregor/Pacific Press/LightRocket via Getty Images

A federal appeals court on Friday ruled that Arkansas’ law requiring state contractors to pledge not to boycott Israel is unconstitutional.A three-judge panel of the 8th US Circuit Court of Appeals reversed a federal judge’s 2019 decision that dismissed the lawsuit by the Arkansas Times, challenging the requirement. The newspaper had asked the judge to block the law, which requires contractors with the state to reduce their fees by 20% if they do not sign the pledge.

The court said the law is written so broadly that it would also apply to vendors that support or promote a boycott.

“The Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime,'” the court said in its 2-1 decision. “Such a restriction violates the First Amendment.”<
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The Arkansas Times’ lawsuit said the University of Arkansas Pulaski Technical College refused to contract for advertising with the newspaper unless it signed the pledge. The newspaper is not engaged in a boycott against Israel.

The appeals panel sent the case back to US District Judge Brian Miller, who ruled in 2019 that refusing to purchase items was not protected speech by the First Amendment.

“Arkansas politicians had no business penalizing our clients for refusing to participate in this ideological litmus test,” Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, which represented the Arkansas Times in the case, said. “Free speech isn’t a privilege you pay for, it’s a right guaranteed to every Arkansan.”

Arkansas’ law is similar to restrictions enacted in other states that have been challenged. The measures are aimed at a movement protesting Israel’s policies toward Palestinians. Similar measures in Arizona, Kansas, and Texas that were blocked were later allowed to be enforced after lawmakers narrowed the requirement, so it only applied to larger contracts. Arkansas’ law applies to contracts worth $1,000 or more.

Arkansas Attorney General Leslie Rutledge’s office said she was reviewing the opinion to determine the next step.

“The Attorney General is disappointed in the Eighth Circuit’s decision, which interferes with Arkansas’s law banning discrimination against Israel, an important American ally,” spokesperson Amanda Priest said in a statement.

The American Jewish Committee expressed disappointment by the court’s decision, as well. 

“The court chose to read the statute as prohibiting the state from contracting with people who are participating in a boycott of Israel even if that participation was wholly unrelated to their state contract,” the organization said in a statement.

The AJC explained that it does not read the statute as reaching such unrelated conduct. Rather, the statutes only boycott “participation that does, or is likely to, adversely affect the state’s interest in the contract in question.”

“Arkansas can easily remedy the flaws in today’s [Friday] decision both legislatively and administratively by limiting the statute and required contractor compliance certificate accordingly. AJC has already put into motion efforts to facilitate such changes,” the statement said.