State power to regulate economic activity includes the power to regulate the purely commercial conduct of a boycott, appellate court says.
Arkansas’s anti-BDS law requiring state contractors to certify they don’t boycott Israel passes constitutional muster, according to the full Court of Appeals for the Eighth Circuit. The court’s decision in the highly watched case of Arkansas Times LP v. Waldrip, handed down this morning, affirmed the lower court decision upholding the state law.
LIF covered the case previously, at:
- Federal Court upholds constitutionality of Arkansas anti-BDS law
- Lessons Learned On The Frontlines Against BDS
Back in 2019, U.S. District Judge Brian S. Miller dismissed the case after finding that the state violated no constitutional right by requiring its vendors to certify that they don’t boycott Israel.
The case was appealed. A 2021 decision by the Eighth Circuit initially reversed the lower court and claimed the law violated the First Amendment, based on a tortured reading of the statute. The Eighth Circuit then vacated (i.e., rescinded) that decision and ordered the case reheard before all judges of the circuit, instead of just the three-judge panel who had decided it earlier.
The case was reargued on September 21, 2021. Judge Jonathan A. Kobes, who dissented from the vacated 2021 decision, wrote the majority opinion upholding the law. “The basic dispute in this case,” Kobes wrote, “is whether ‘boycotting Israel’ only covers unexpressive commercial conduct, or whether it also prohibits protected expressive conduct.” Briefly, the court upheld the state’s right to regulate boycotts as commercial conduct. While economic boycotts are often accompanied by expressive conduct protected by the First Amendment, Kobes’ majority opinion concluded, the boycott itself is not protected by the First Amendment.
The opinion on this point corrected an absurd misreading of the statute’s so-called catch-all or garbage can provision in the vacated opinion. Frequently, laws will list examples of things that are covered by it, and then add in something like, ‘and other actions.’ That’s exactly what the Arkansas statute does. The court’s opinion explained:
The statute defines “boycott of Israel” as “engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner.” Ark. Code Ann. § 25-1-502(1)(A)(i).
The vacated opinion had tried to read “other actions” as covering protected speech activities, but its context in the statute indicates that “other actions” refers to commercial activities. Furthermore, accepted canons of statutory construction require a court to interpret a statute as presumptively constitutional, and not to stretch its meaning to force an unconstitutional reading. The Eighth Circuit’s en banc opinion read the law in this limited, presumptively constitutional way. It held that the law only applies to commercial activities, and is constitutional.
Furthermore, the court’s opinion continued, the certification required of vendors is not unconstitutionally compelled speech. The majority opinion noted, “We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech.”
Although the majority opinion did not discuss this, government contractors are commonly required to provide certifications for many things, including their assurance that they do not discriminate. In fact, the paperwork government contractors are required to submit is frequently copious and oppressive. But, certifications of this nature have not been held to be unconstitutionally compelled speech.
Judge Jane L. Kelly, who wrote the subsequently-vacated opinion reversing Judge Miller’s original decision, wrote a dissent. She continued to argue that the term “other actions” in the statute reading
“Boycott Israel” and “boycott of Israel” means engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel (emphasis added),
It’s unclear and therefore should be interpreted as potentially including expressive activity protected by the First Amendment.
This is the first federal appellate opinion to address the substantive issues of anti-BDS laws, which have not been specifically addressed by the Supreme Court. (The Fifth and Ninth Circuit appellate courts previously vacated district court opinions after the states involved amended their anti-BDS laws, but neither court addressed the merits of the cases below.) Another case, A&R Engineering and Testing, Inc. v. Paxton, is currently pending before the Fifth Circuit. Circuit courts are not bound by the decisions of courts in other circuits, but as an en banc decision – that is, a decision by the entire circuit court and not just three judges from it – the Eighth Circuit’s Waldrip opinion is likely to carry a lot of persuasive authority.DONATE
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