Arkansas Times LP v. Waldrip, No. 19-1378 (8th Cir. 2021)Annotate this Case
Arkansas Times filed suit against various members of the University of Arkansas Board of Trustees (UABT) in their official capacities as trustees concerning Arkansas Act 710 of 2017, seeking a preliminary injunction enjoining enforcement of the Act and alleging that it violates the First and Fourteenth Amendments. The Act is entitled "An Act to Prohibit Public Entities from Contracting with and Investing in Companies That Boycott Israel; and for Other Purposes." The district court denied Arkansas Times's motion for a preliminary injunction and dismissed the case.
Considering the Act as a whole, the Eighth Circuit concluded that the term "other actions" in the definition of "boycott Israel" and "boycott of Israel" encompasses more than "commercial conduct" similar to refusing to deal or terminating business activities. Instead, the court explained that the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors' ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982). Therefore, the court concluded that the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship "on its own time and dime," and such a restriction violates the First Amendment.
Court Description: [Kelly, Author, with Melloy and Kobes, Circuit Judges] Civil case - First Amendment. Arkansas Code Ann. Sec. 25-1-503 (2017) requires companies doing business with the State to certify that they did not currently and would not, during the period of the contract, boycott Israel by engaging in refusals to deal, terminating contracts or taking "other actions" intended to limit commercial relations with Israel. The plaintiff, which ran ads in its newspapers for the University of Arkansas's university system, refused to sign a certification, and the State did not renew its advertising contract. The plaintiff then brought this action to enjoin enforcement of the statute on the grounds it violates the First and Fourteenth Amendments. The district court dismissed the action on the ground that a boycott of Israel, as defined by the Act is neither speech nor inherently expressive conduct, and plaintiff appeals. Held: considering the Act as a whole, 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 or terminating business activities. Instead, 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, thereby implicating First Amendment rights; because the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship "on its own time and dime," the restriction violates the First Amendment. Reversed and remanded for further proceedings. Judge Kobes, dissenting.
The court issued a subsequent related opinion or order on June 22, 2022.