WASHINGTON– The Supreme Court today declined to review the Arkansas Times’ legal challenge to an Arkansas law requiring government contractors to certify that they are not boycotting Israel or “Israeli-controlled territories.” The denial leaves in place a previous ruling from the Eighth Circuit Court of Appeals, which held that boycotts are not “expressive” enough to merit First Amendment protection.
In 2018, the University of Arkansas Pulaski Technical College demanded that the Arkansas Times, a weekly alternative newspaper based in Little Rock, sign the anti-boycott certification as a condition of renewing the college’s advertising contracts. Although the Arkansas Times is not boycotting Israel, it refused to sign the certification on principle. The ACLU and ACLU of Arkansas then filed a lawsuit on behalf of the Arkansas Times, asserting that Arkansas’ law violates the First and Fourteenth Amendments to the Constitution by penalizing consumer boycotts that express disfavored messages.
The Eighth Circuit ultimately dismissed the case, reasoning that the First Amendment does not protect the right to participate in a boycott. In its petition asking the Supreme Court to take the case, the Arkansas Times argued that the Eighth Circuit’s decision conflicts with the Supreme Court’s landmark ruling in NAACP v. Claiborne Hardware Co., which held that the First Amendment protected a civil rights boycott to protest segregation and inequality. If Claiborne Hardware means anything, the Arkansas Times maintained, it means the government can’t penalize specific boycott campaigns just because it disagrees with their viewpoint.
“The right to free speech includes the right to participate in political boycotts. America was founded on political boycotts, and boycotts are a powerful way to speak and create change, said Holly Dickson, executive director of the ACLU of Arkansas. “This state legislative majority wanted the government to have power to force people to relinquish their First Amendment rights or pay a penalty, and that is a dangerous step backward for our rights.”
The Supreme Court’s decision not to hear the Arkansas Times’ case means that debates over the government’s power to suppress boycotts will continue. Federal courts in Kansas, Arizona, Texas, and Georgia have held that laws penalizing boycotts of Israel violate the First Amendment. Disagreeing with those decisions, the Eighth Circuit held that the First Amendment protects speech and association in support of a boycott, but not the purchasing decisions at the heart of the boycott. Meanwhile, states are considering new legislation that would punish boycotts of fossil fuel companies, firearms manufacturers, and other industries.
“The Supreme Court missed an important opportunity to reaffirm that the First Amendment protects the right to boycott,” said Brian Hauss, senior staff attorney with the ACLU Speech, Privacy and Technology Project: “From the Boston Tea Party to the Montgomery Bus Boycott to the boycott of apartheid South Africa, Americans have proudly exercised that right to make their voices heard. But if states can suppress boycotts of Israel, then they can suppress boycotts of the National Rifle Association or Planned Parenthood. While we are disappointed with the result in this case, the ACLU will continue to defend the right to boycott in courts and legislatures throughout the country.”