LITTLE ROCK –The Arkansas Civil Liberties Union Foundation and the American Civil Liberties Union Foundation today filed a notice of appeal in their lawsuit challenging a state law that requires government contractors to pledge not to boycott Israel or reduce their fees by 20 percent. The lawsuit, which was dismissed by a U.S. District Court judge in January, was filed on behalf of the Arkansas Times LP. The Times was penalized by the government after it refused to certify that it is not boycotting Israel or Israel-controlled territories.
The case is being appealed to the U.S. Court of Appeals for the Eighth Circuit.
“The district court’s decision would radically limit the First Amendment right to boycott if allowed to stand,” said Rita Sklar, ACLU of Arkansas executive director. “Allowing the government to force people to relinquish their First Amendment rights or pay a penalty for expressing certain political beliefs disfavored by the government would set a dangerous precedent. This ‘pay-to-say’ tax is blatantly unconstitutional and we’re committed to seeing the law struck down.”
An Arkansas statute, known as Act 710, requires government contractors to pledge not to boycott Israel or reduce their fees by 20 percent. In December, the ACLU and ACLU of Arkansas filed a lawsuit on behalf of Arkansas Times LP asserting that Act 710 violates the First and Fourteenth Amendments to the Constitution by penalizing disfavored political boycotts, a constitutionally protected form of expression and protest.
“I shudder to think what future state legislatures might do if more courts uphold laws like the one in Arkansas,” said Leveritt. “Could blue state legislatures punish people who participate in boycotts of Planned Parenthood? Could red state legislatures prohibit boycotts of the NRA? The court got it wrong in our case, and there’s too much at stake to let this ruling stand.”
For many years, Arkansas Times LP has contracted with state actors to run advertisements in its various publications for Pulaski Technical College (UAPTC). Last year, on the basis of Act 710, UAPTC demanded that the 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. Arkansas Times LP has not ever been involved in any kind of boycott of Israel, or anyone else. Leveritt refused to sign any such certification on principle and, accordingly, UAPTC has refused to enter into further advertisement contracts with Arkansas Times LP.
Two federal courts recently blocked similar anti-boycott state laws. In January 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 September, a district court enjoined a similar anti-boycott law in Arizona.
The ACLU and ACLU of Arkansas take no position on campaigns to boycott Israel or any other foreign country, but the organizations have long defended the First Amendment right to participate in political boycotts.