A sign carried during a May Day Rally and March in San Francisco in 2011. (Flickr)
MIKE WAGENHEIM
12/26/2021
The case of Arkansas Times LP v. Waldrip over the state of Arkansas' anti-BDS law could hinge on two words
It all comes down to two words.
Proponents and critics of the anti-Israel boycott, divestment and sanctions (BDS) movement are keeping tabs on St. Louis, where the 8th US Circuit Court of Appeals is set at any time to release its decision in the case of Arkansas Times LP v. Waldrip.
Back in February, a three-judge panel of the 8th Circuit Court of Appeals overturned a lower court decision and held, by a 2-1 vote, that an Arkansas law requiring government contractors to pledge not to boycott Israel or be required to reduce their fees by 20% violates the First Amendment. The lawsuit was filed on behalf of the Arkansas Times newspaper, which was penalized by the state government after it refused to certify that it is not boycotting Israel or Israel-controlled territories.
Some BDS supporters presented the decision by the appeals court as a game-changer that would lead to a domino effect striking down all anti-BDS laws on free speech grounds. Some legal experts say the decision is narrower and pertains only to government contracts, as opposed to divestment and other anti-BDS policies some states have formulated. Either way, the panel’s decision was a notable win – even temporarily – for the BDS movement.
“It’s hard to characterize the panel’s ruling as anything but judicial activism and contortion. The spillover becomes highly problematic because it would make it unreliable for the legislature to anticipate which legal canon of interpretation would be followed. It doesn’t just create this problem for the legislature, but it would be the same for the lower courts,” Joseph Sabag, executive director of Israeli-American Coalition for Action, told The Media Line. Sabag is an attorney and policy specialist who has led the drafting of anti-BDS legislation in a number of states, including Arkansas.
Calling the law an unconstitutional tax on free speech, the American Civil Liberties Union of Arkansas filed suit, challenging the state law which took effect in August 2017. The ACLU claims the law violates the First Amendment and Fourteenth Amendment to the Constitution by suppressing one side of a public debate and imposing a tax on constitutionally protected free speech.
The act in question is titled “An Act To Prohibit Public Entities From Contracting With and Investing in Companies That Boycott Israel; And for Other Purposes.” The district court which first heard the case denied the Arkansas Times’ motion for a preliminary injunction and dismissed the suit.
It is important to impress upon those following the case that the full panel of 11 judges have likely taken this case up not just for the implications of this case, but also to protect legal canons
Arkansas Times LP has contracted with state actors to run advertisements in its various publications for Pulaski Technical College (UAPTC). On the basis of the law, UAPTC demanded that Arkansas Times CEO Alan Leveritt sign a certification agreeing that Arkansas Times LP will not engage in a boycott of Israel as a condition of the contract. Leveritt refused to sign any such certification and, accordingly, UAPTC refused to enter into further advertisement contracts with Arkansas Times LP. Leveritt has said that he has no active interest in boycotting Israel, though he is highly critical of an evangelical Christian-heavy legislature that passed the applicable law, claiming they are tying religion and state together.
“We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience,” he stressed. It would also compromise the paper’s role as a journalistic entity, making it ‘unworthy of the protections granted us under the First Amendment,’” Leveritt wrote in a recent op-ed.
The lawsuit asks the court to declare the law unconstitutional and enjoin members of the University of Arkansas Board of Trustees, which oversees UAPTC, from enforcing it.
“If this was really about protecting against boycotts, why is there a clause that allows instead for a 20% cut on contracts? The government raised the argument that you have a First Amendment right to boycott, but not to a government contract, but the government can’t use its economic leverage as an employer to dictate private citizens’ speech on their own dime and time,” Brian Hauss, staff attorney for the ACLU Speech, Privacy and Technology Project, told The Media Line. Hauss is trying the case on behalf of Arkansas Times LP.
“There was a case, Boos v. Barry, that made it to the Supreme Court in the 1990s. A Washington, DC law made it illegal for those protesting in front of foreign embassies to display signs criticizing a foreign government because it supposedly harms US foreign interests. The Supreme Court struck down that part of the law. Why? We expect our own government officials to stand up to criticism, so we need to expect foreign governments – even American allies – to do so, as well,” said Hauss.
The three-judge panel’s decision centered around a two-word phrase in Arkansas’ anti-boycott law: “other actions.”
The district court initially dismissed the lawsuit action on the grounds that a boycott of Israel, as defined by the law, is neither speech nor inherently expressive conduct. The three-judge appeals panel found that the statutory term “other actions” in the definition of “boycott Israel” and “boycott of Israel” encompasses more than commercial conduct, similar to refusing to deal with or terminate business activities. Instead, the panel ruled, the act seeks to restrict government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized as entitled to protection under Supreme Court precedent because the act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship “on its own time and dime.”
Sabag says the decision of the 8th Circuit Court incorrectly applied the general principle of statutory construction known by the Latin phrase ejusdem generis, which means “of the same kind.” This rule governs how a general word or phrase, in this case, “other actions,” should be construed, if it follows specifically enumerated terms. As Judge Jonathan Kobes wrote in his dissent: “The specific phrases before the ‘other actions’ provision – ‘engaging in refusals to deal’ and ‘terminating business activities’ – relate solely to commercial activities. It follows that the more general phrase ‘other activities’ does as well.” Instead, Sabag claims, the majority erroneously concluded that the meaning of “other activities” should be widened to include the regulation of speech, which would be a violation of the First Amendment, as well as commercial activities.
The Court of Appeals for the 8th Judicial Circuit granted a rehearing en banc of the 8th Circuit Court’s decision. The rehearing gave the full appeals court a chance to hear the case again. En banc review is used for unusually complex or important cases or when the court feels there is a particularly significant issue at stake.
“It is important to impress upon those following the case that the full panel of 11 judges has likely taken this case up not just for the implications of this case, but also to protect legal canons. The three-judge panel’s ruling created a high margin of chaos. An en banc appeal for a rehearing actually being accepted is more unusual than the Supreme Court taking up a case,” said Sabag.
The ACLU racks up injunctions – not wins. Its cases have never arrived at the judgment stage until now.
The ACLU has previously blocked anti-boycott state laws in Kansas and Arizona. In 2018, a federal district court preliminarily enjoined an anti-boycott state law in Kansas, holding that the First Amendment protects citizens’ right to “band together” and “express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens.” In 2020, a district court enjoined a similar anti-boycott law in Arizona.
But, both of those victories were only temporary. In the Kansas case, the state legislature amended the law to narrow its scope, and the ACLU later withdrew its suit. Arizona amended its law following the injunction there, and a federal appeals court subsequently quashed the injunction, since the plaintiff in that case was no longer affected by its terms.
“People are watching this (Arkansas Times) case very closely. We’ve won before in these types of cases and forced changes to state laws. Those changes meant the law no longer applied to our clients,” said Hauss, who told The Media Line that the case would likely be appealed to the Supreme Court if the full 8th Circuit panel ruled against his client. He cited the court’s 8-0 decision in 1992 in the case of the NAACP v. Claiborne Hardware Company, a landmark anti-boycott ruling that is often cited as evidence of the unconstitutionality of anti-BDS laws.
But Sabag counters that the ACLU’s wins so far on anti-boycott matters have been temporary.
“We’ve seen a variety of test cases in various districts, but they have never resulted in a trial. The ACLU racks up injunctions – not wins. Its cases have never arrived at the judgment stage until now,” said Sabag.
Which is exactly why everyone in the boycott movement – both for and against – has their eyes on St. Louis.
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