LITTLE ROCK, Ark. (AP) – A federal appeals court on Wednesday upheld Arkansas’ law requiring state contractors to pledge not to boycott Israel, ruling the restriction is not an unconstitutional violation of freedom of expression.
Last year, the US Court of Appeals for the 8th Circuit overturned a 2-1 ruling by a three-judge court panel that found the requirement unconstitutional. The Arkansas Times had sued to block the law, which requires contractors in the state to cut their fees by 20% if they don’t sign the recognizance.
“(The law) only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes wrote in the court opinion. “Because these business decisions are invisible to observers unless explained, they are not inherently expressive and do not involve the First Amendment.”
A federal judge in 2019 dismissed the Times lawsuit, ruling that boycotts are not protected by the First Amendment. A three-judge panel of the appeals court overturned that decision, and the state appealed to the full appeals court.
The new ruling did not give details of how the judges decided, but at least one dissented, saying the law is written so broadly it could go beyond boycotts.
“One could imagine a business displaying anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the act with the intention of ‘limiting relations trade with Israel’ in general,” Judge Jane Kelly wrote in her dissent. “And any of that conduct would arguably fall under the prohibition.”
The Times lawsuit said the Pulaski Technical College at the University of Arkansas refused to enter into an advertising contract with the newspaper unless the newspaper signed the pledge. The newspaper is not engaged in a boycott against Israel.
Arkansas’ law is similar to restrictions enacted in other states that have been challenged. The measures target a protest movement against Israel’s policy towards the Palestinians. Similar measures in Arizona, Kansas and Texas that were blocked were later allowed to proceed after lawmakers reduced the requirement so that it applied only to larger contracts. Arkansas law applies to contracts worth $1,000 or more.
Citing its anti-boycott law, Arizona last year sold millions of dollars in Unilever bonds following the Ben & Jerry’s subsidiary’s decision to stop selling its ice cream in the Israeli-occupied territories.