This morning, the United States Supreme Court denied the petitioner’s application for writ of certiorari in Arkansas Times v. Waldrip, leaving intact an Eighth Circuit en banc ruling upholding Arkansas’ “anti-BDS” (boycott, divest, and sanction) statute. The decision marks a major win in the battle against challenges to these laws prohibiting taxpayer-funded discrimination against the Jewish state.
We covered the case and its procedural history here:
The Arkansas law, passed in 2017, requires companies that enter into public contracts to certify that they do not and will not boycott Israel. From the Eighth Circuit opinion:
Arkansas Act 710 prohibits state entities from contracting with private companies unless the contract includes a certification that the company “is not currently engaged in and agrees for the duration of the contract not to engage in, a boycott of Israel.” Ark. Code Ann. § 25-1-503(a)(1). 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).
As we wrote here, The Arkansas Times, represented by the American Civil Liberties Union (ACLU), originally challenged the statute in district court, arguing that it violates the First Amendment. The court dismissed the suit, holding that the anti-Israel boycotts are not protected by the First Amendment because they are neither speech nor expressive conduct. That decision was then reversed by a divided three-judge panel of the Eighth Circuit Court of Appeals. The Eighth Circuit subsequently granted a rehearing en banc, i.e., with all of its active judges presiding.
The lawsuit was the latest in the ACLU’s years-long battle against anti-BDS laws—a battle roundly criticized for its hypocrisy. Historically, the ACLU championed antiboycott legislation that protected gays and lesbians, law professor Eugene Kontorovich observed in a 2019 Wall Street Journal op-ed. But when the Jewish state appeared in the crosshairs of the modern-day BDS movement, the civil liberties group gained a strange new respect for boycotts: “Now,” he wrote, “it is prepared to risk legal protections for sexual minorities for the sake of creating a constitutional right to boycott Jews.”
In the Arkansas Times case, the ACLU claimed that the Arkansas statute placed an unconstitutional condition on the award of government contracts and that it compelled speech.
The Eighth Circuit disagreed. It upheld the Arkansas law because it prohibits only “purely commercial, non-expressive conduct.”:
It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.
Nor does the statute unconstitutionally compel speech, the court held. (Note that Arkansas Times did not base its petition for certiorari on the compelled-speech theory.) “The compelled speech doctrine,” it explained, “prohibits the government from making someone disseminate a political or ideological message.”
But the Arkansas statute’s certification requirement does not cross that line:
Although it requires contractors to agree to a contract provision they would otherwise not include, it does not require them to publicly endorse or disseminate a message. Instead, the certification targets the noncommunicative aspect of the contractors’ conduct—unexpressive commercial choices. The “speech” aspect—signing the certification—is incidental to the regulation of conduct.
Seen this way, the court concluded, the certification requirement is a “factual disclosure” “aimed at verifying compliance with unexpressive conduct-based regulations.” That is “not the kind of compelled speech prohibited by the First Amendment.”
The ACLU took the case to the United States Supreme Court in October of last year. In its petition for a writ of certiorari, it argued that the appeals court ignored First Amendment Supreme Court precedent set in NAACP v. Claiborne Hardware Co. protecting “political” boycotts.
We wrote about the BDS movement’s misplaced reliance on Claiborne Hardware to promote anti-Israel boycotts in our review of a research paper here: That case, the authors observed, carefully avoided ruling on the constitutionality of the boycotts themselves. The drafters of contemporary anti-BDS legislation seem to have taken note: the state statutes avoid constitutional pitfalls by targeting “only… the boycott … leaving the ancillary expression untouched.’”
In other words, today’s anti-BDS laws regulate conduct, not speech.
That is the position the respondents take in their opposition to the petition for writ of certiorari:
Economic conduct isn’t expression, and explaining that it had a political motivation doesn’t make it expression. That’s why States can, and often do, ban refusals to do business solely because of an individual’s race, national origin, religious affiliation, or other status—even if they’re accompanied by speech. And this Court has affirmed those bans time and time again.The Arkansas law at issue here squarely fits that mold. Arkansas does not want to partner with companies that discriminate based on national origin, so it requires government contractors to certify that they don’t refuse to deal with Israelis or people who do business with them. That requirement regulates only that economic conduct; it doesn’t prohibit contractors from saying anything.
The Court’s decision to let the Eighth Circuit en banc ruling stand is an important victory in the fight against government-funded discrimination against Israel. More than half of the states in the country have anti-BDS laws that, like the Arkansas statute, require government contractors to certify that they are not boycotting the Jewish state.
The Eighth Circuit is the only circuit-level court to have addressed the merits of the anti-Israel-boycott statutes. And although its decision is not binding in other circuits, it is nonetheless likely to influence courts seeking guidance in future challenges to other state’s statutes. One of those is the Fifth Circuit, where A&R Engineering and Testing, Inc. v. Paxton, is pending, scheduled for oral argument next mo
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