362 F. Supp. 3d 617
E.D. Ark.2019Background
- Arkansas enacted Act 710, barring state entities from contracting with companies that will engage in a defined "boycott of Israel," unless the company certifies it will not boycott; non‑certifiers may still contract only if they offer a ≥20% price discount; exemptions for contracts under $1,000.
- Arkansas Times (weekly newspaper) routinely contracted with Pulaski Technical College for advertisements; in 2018 the paper declined to sign the Act 710 certification, citing First Amendment rights, and consequently did not obtain a new contract.
- The Times has not previously participated in or endorsed a boycott of Israel and appears unlikely to do so; it has, however, editorially criticized Act 710.
- The Times sued, alleging Act 710 (1) compels speech and (2) unlawfully restricts protected First Amendment activity (boycotts and boycott‑related speech); it sought a preliminary injunction; defendants moved to dismiss.
- The district court found the Times had Article III standing based on the economic injury from losing the Pulaski Tech contract but denied the preliminary injunction and granted the motion to dismiss with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Act 710 compels speech or requires endorsement of a viewpoint | Act 710 forces contractors to certify political beliefs and forecloses expressive activity tied to boycotts | Certification is merely a condition for contracting and targets commercial conduct, not compelled advocacy | Court: Certification does not compel protected speech because it regulates non‑expressive commercial conduct as defined by the statute |
| Whether boycotts defined by Act 710 are protected by the First Amendment | Boycotts (refusal to deal/purchasing choices) are political expression protected under Claiborne and related precedents | Boycotts as defined are non‑expressive commercial conduct; Claiborne is narrow and doesn't create an unfettered right to refuse to deal, especially regarding foreign policy | Court: Boycotts of Israel, as defined by Act 710, are neither speech nor inherently expressive and are not independently protected |
| Whether Claiborne creates a broad constitutional right to boycott | Claiborne protects politically motivated boycotts as expressive conduct | Defendants: Claiborne is limited to its facts (primary boycotts vindicating domestic constitutional/statutory rights) and does not cover foreign‑directed commercial refusals | Court: Claiborne is narrow; it does not extend to the kind of boycotts at issue here |
| Whether plaintiff stated a claim under the First Amendment | Act 710 chills and restricts protected association and expressive conduct | Act 710 regulates non‑expressive conduct and thus does not violate the First Amendment | Court: Complaint fails to state a plausible First Amendment claim; dismissal granted |
Key Cases Cited
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (First Amendment bars government from dictating protected expression)
- Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006) (conduct is not inherently expressive merely because accompanied by speech)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (primary political boycotts can be protected where tied to vindication of constitutional/statutory rights)
- Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212 (1982) (secondary/foreign‑directed boycotts need not receive First Amendment protection)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for failure‑to‑state‑claim motions)
- Jordahl v. Brnovich, 336 F. Supp. 3d 1016 (D. Ariz. 2018) (district court decision finding a similar anti‑boycott statute likely unconstitutional)
- FAIR v. Rumsfeld (same as Rumsfeld), 547 U.S. 47 (2006) (controlling precedent on expressive conduct)