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U.S. Supreme Court Declines to Hear Challenge to Arkansas' Anti-Israel Boycott Requirement for Government Contractors

Under the law, government contractors must pledge not to boycott Israel or reduce their fees by 20%

The United States Supreme Court declined to hear a First Amendment challenge to an Arkansas requirement under which government contractors must pledge not to boycott Israel.

The Arkansas Times, an alternative weekly newspaper based in Little Rock, had asked the court to take up the case, arguing the requirement infringes on the right to free speech.

Government contractors that refuse to sign the pledge are required to cut their fees by 20% under state law. 

A federal court of appeals in Saint Louis upheld Arkansas’s pledge requirement in June of 2022, reversing a 2-1 decision by a lower court’s three-judge panel in favor of the newspaper.

“(The law) only prohibits economic decisions that discriminate against Israel,” Judge Jonathan Kobes wrote in the court’s opinion, per US News &World Report. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”

Prior to the three-judge panel’s ruling, Chief U.S. District Judge Brian Miller had ruled against The Arkansas Times in 2019. Miller found that boycotts are not protected by the First Amendment.

The Arkansas Times has said it has no plans to boycott Israel but objects to the principle of the pledge requirement, known as Act 710.

“As journalists, citizens and taxpayers, we dispute the right of the state to impose an ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit,” stated Alan Leveritt, the outlet’s publisher, per the Arkansas Democrat-Gazette.

The American Civil Liberties Union had backed the publication’s legal battle. The nonprofit filed a preliminary injunction to stop the law from being enforced and argued that Act 710 violated “the First Amendment rights of the Arkansas people because political boycott is protected expression.”

“You can’t condition government contracts on the forfeiture of First Amendment rights and make people choose between their livelihoods and their First Amendments rights,” said Brian Hauss, the lead ACLU attorney for the case, per NBC News

The ACLU has removed its original statement about the case from its website. 

“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, the executive director of the ACLU of Arkansas, in a press release on Feb. 21. “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 pledge requirement was passed by the Arkansas legislature in 2017. As part of any public contract worth $1,000 or more, the contractor must agree not to participate in boycotts of Israel, which the government defines as “actions that are intended to limit commercial relations” with Israel or “Israeli-controlled territories,” per Reuters.

Republican legislators in Arkansas who drafted the 2017 law have said it wasn’t prompted by a specific incident in the state,” reports Fox News

According to the Jewish Virtual Library, a total of 35 states have laws, executive orders, or resolutions that are intended to prevent boycotts of Israel.

In 2022, Tennessee Governor Bill Lee signed SB1993 which required those entering state contracts to agree to a written pledge not to boycott Israel for the duration of the contract. Similar agreements have been enacted in Florida in 2018, Georgia in 2016, Rhode Island in 2016, Ohio in 2016, California in 2016, Wisconsin in 2017, Louisiana in 2018, and Idaho in 2021.

Advocates for the ban say the measures prevent the Palestine-led Boycott, Divestment, and Sanctions movement which targets Israel.

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