Wednesday, February 17, 2021

8th Circuit: Arkansas Anti-Boycott of Israel Law Violates 1st Amendment

In Arkansas Times LP v. Waldrip, (8th Cir., Feb. 12, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, struck down an Arkansas' statute requiring businesses that enter contracts with public entities to certify that they will not engage in any boycott of Israel. "Boycott of Israel" is defined in the statute as "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel...." The majority said in part:

Considering the Act as a whole, we conclude that the term “other actions” in the definition of ... “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act [also] requires government contractors ... 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.... Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights.

Judge Kobes dissented.  Courthouse News Service reported on the decision.