988 F.3d 453
8th Cir.2021Background
- Arkansas enacted Act 710 (2017), barring public entities from contracting with companies that engage in a “boycott of Israel” unless the contractor certifies it is not and will not boycott Israel during the contract.
- The Act defines “boycott of Israel” to include “engaging in refusals to deal,” “terminating business activities,” or “other actions that are intended to limit commercial relations with Israel … in a discriminatory manner,” and authorizes use of a company’s statements or association as evidence of participation.
- Arkansas Times, a newspaper that had run Pulaski Technical College ads, refused to sign a contractor certification required by the Act; the contract was not renewed and Arkansas Times sued, seeking injunctive and declaratory relief on First and Fourteenth Amendment grounds.
- The district court denied a preliminary injunction and dismissed, holding the Act’s boycott prohibition was not inherently expressive and therefore not protected speech.
- The Eighth Circuit majority reversed: it found the statutory phrase “other actions” ambiguous, read the Act as encompassing expressive support or promotion of boycotts (speech/association), and held the certification condition implicates First Amendment rights and is an unconstitutional attempt to leverage contracting to regulate protected speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act’s certification imposes an unconstitutional condition on government contractors | Certification coerces contractors to refrain from politically motivated boycotts, chilling protected speech | Certification is a permissible contract condition because boycotts of Israel are not inherently expressive conduct | Held for plaintiff: condition implicates First Amendment and is impermissible leverage of contracting power; reversed and remanded |
| Whether the Act’s definition of “boycott of Israel” covers expressive, protected activity (speech, association) beyond purely commercial conduct | The phrase “other actions” plus legislative findings and evidentiary rules cover supporting/promoting boycotts and thus protected activity | The definition should be read narrowly (ejusdem generis) to encompass only commercial acts (refusals to deal, terminating business) | Held: ambiguous plain meaning; considering the Act as a whole, it covers speech and association used to support/promote boycotts, thus implicating First Amendment rights |
| Proper canons of statutory interpretation to apply (ejusdem generis vs. whole-act/legislative findings) | Legislative findings and evidence provisions show intent to restrict support/promote activity; court should construe statute in light of whole Act | Use ejusdem generis to limit “other actions” to commercial activities similar to refusals to deal and terminations | Held: majority rejects a limiting-only ejusdem generis reading; examines the Act’s findings and evidentiary language and reads “other actions” to include noncommercial support/promotion |
| Whether a funding/contracting condition that affects speech is nevertheless permissible | Even as a condition, it unlawfully leverages state contracting to regulate speech outside the program’s scope | The condition is informational/contractual and does not regulate protected speech | Held: majority applies unlawful-conditions doctrine (All. for Open Soc’y) and Claiborne authority to conclude the condition is not a permissible limitation on speech |
Key Cases Cited
- N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (nonviolent, politically motivated boycott elements are protected by the First Amendment)
- Rumsfeld v. FAIR, 547 U.S. 47 (conduct not inherently expressive; expressive content may depend on accompanying speech)
- Fed. Trade Comm’n v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (distinguishes political boycotts from economic/coercive boycotts lacking First Amendment protection)
- Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668 (unconstitutional-conditions doctrine applies to independent government contractors)
- Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (government may not leverage funding to regulate protected speech outside program scope)
- Rust v. Sullivan, 500 U.S. 173 (some funding conditions that limit program-related speech can be constitutional)
- FCC v. League of Women Voters of Cal., 468 U.S. 364 (limits on use of federal funds that affect speech analyzed under unconstitutional-conditions principles)