Arkansas Times LP v. Mark Waldrip, No. 19-1378 (8th Cir. 2022)Annotate this Case
Arkansas Act 710 prohibits state entities from contracting with private companies unless the contract includes a certification that the company “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.” Ark. Code Ann. Section 25-1-503(a)(1). Arkansas Times, a newspaper, contracts with University of Arkansas-Pulaski Technical College sued for a preliminary injunction, arguing that the certification violates the First Amendment in two ways.
The Eighth Circuit affirmed the district court’s judgment. The court reasoned that the First Amendment protections don’t just prevent outright prohibitions on speech; they also prohibit the government from imposing unconstitutional conditions that chill or deter speech. At issue, here, is whether “boycotting Israel” only covers unexpressive commercial conduct, or whether it also prohibits protected expressive conduct. Arkansas Times points to N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982), which held that expressive conduct accompanying a boycott is protected by the First Amendment. The State argues that Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006) controls. There, the Supreme Court held that First Amendment protection does not extend to non-expressive conduct intended to convey a political message.
The court wrote that it believes the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, non-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. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.
Court Description: [Kobes, Author, for the Court En Banc] Civil case - Constitutional law. Arkansas Act 710 prohibiting state entities from contracting with private companies unless the contract includes a certification that the company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel, does not violate the First Amendment; under Arkansas's canons of statutory interpretation, the court concludes the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, non-expressive conduct; the certification requirement concerning unprotected, nondiscriminatory conduct is not unconstitutional compelled speech. Judge Kelly, dissenting.
This opinion or order relates to an opinion or order originally issued on February 12, 2021.