*2 Before KELLY, MELLOY, and KOBES, Circuit Judges.
____________
KELLY, Circuit Judge,
Arkаnsas Times LP (Arkansas Times) sued various members of the University of Arkansas Board of Trustees (UABT) in their official capacities as trustees (collectively, the Defendants) concerning Arkansas Act 710 of 2017 (the Act). Arkansas Times sought a preliminary injunction enjoining enforcement of the Act, alleging that it violates the First and Fourteenth Amendments. The Defendants, represented by the Arkansas Attorney General’s Office (the State), moved to dismiss the case. The district court denied Arkansas Times’s motion for a preliminary injunction and dismissed the case. Arkansas Times appeals.
I.
In 2017, Arkansas enacted Arkansas Act 710, titled “An Act to Prohibit Public Entities from Contracting with and Investing in Companies That Boycott Israel; and for Other Purposes.” The Act provides, in pertinent part:
(a) Except as provided under subsection (b) of this sectiоn, a public entity shall not:
(1) Enter into a contract with a company to acquire or dispose of services, supplies, information technology, or construction unless the contract includes a written certification that the person or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel; or
(2) Engage in boycotts of Israel. (b) This section does not apply to:
(1) A company that fails to meet the requirements under subdivision (a)(1) of this section but offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business; or (2) Contracts with a total potential value of less than one thousand dollars ($1,000).
Ark. Code Ann. § 25-1-503 (2017).
The Act defines “boycott of Israel” and outlines evidencе that may be considered to determine whether a company is engaging in a boycott of Israel:
(1)(A)(I) “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, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner. [2] [. . .]
(B) A company’s statement that it is participating in boycotts of Israel, or that it has taken the boycott action at the request, in compliance with, or in furtherance of calls for a boycott of Israel, can be considered by the Arkansas Development Finance Authority as a type of evidence, among others, that a company is participating in a boycott of Israеl.
Id. § 25-1-502(1). Finally, for our present purposes, the Act includes codified legislative findings. Id. § 25-1-501. [3]
Arkansas Times operates a weekly newspaper, the Arkansas Times, as well as other publications. For many years, Arkansas Times contracted with Pulaski Technical College (Pulaski Tech), located in North Little Rock, Arkansas, to run paid advertisements for the college in Arkansas Times’s publications. The college became part of the public University of Arkansas System in 2017, at which point Arkansas Times began to work with UABT, which had the authority to enter into contracts for goods or services on Pulaski Tech’s behalf, to continue running paid advertisements for the college. Arkansas Times and UABT contracted to run advertisements for Pulaski Tech through September 2018.
In October 2018, as the parties were preparing to enter into a new advertising contract for Pulaski Tech, UABT asked Arkansas Times to sign a written certification
(4) It is the public policy of the United States, as enshrined in several federal acts, to oppose boycotts against Israel, and the United States Congress has concluded as a matter of national trade policy that cooperation with Israel materially benefits United States companies and improves American competitiveness;
(5) Israel in particular is known for its dynamic and innovative approach in many business sectors, and therefore a company’s decision to discriminate against Israel, Israeli entities, or entities that do business with or in Israel, is an unsound business practice, making the company an unduly risky contracting partner or vehicle for investment; and
(6) Arkansas seeks to act to implement the United States Congress’s announced policy of “examining a company’s promotion or compliance with unsanctioned boycotts, divestment from, or sanctions against Israel as part of its consideration in awarding grants and contracts and supports the divestment of state assets from companies that support or promote actions to boycott, divest from, or sanction Israel.”
Id. § 25-1-501.
*6 as required under the Act. Pursuant to the certification, Arkansas Times was to “agree and certif[y] that they do not currently boycott Israel, and will not boycott Israel during any time in which they are entering into, or while in contract, with [Pulaski Tech].” See Appendix A. Arkansas Times refused to sign, and as a result the parties did not renew thеir advertising contract. Arkansas Times then brought the present suit seeking injunctive and declaratory relief, on the grounds that the Act violates the First and Fourteenth Amendments. The district court denied Arkansas Times’s motion for a preliminary injunction and granted the Defendants’ motion to dismiss. The district court concluded that a boycott of Israel, as defined by the Act, is “neither speech nor inherently expressive conduct” and is thus not entitled to First Amendment protection. Arkansas Times appealed.
II.
We review de novo the district court’s decision to grant a motion to dismiss,
considering as true all facts alleged in the complaint and drawing all reasonable
inferences in favor of the plaintiff. Higgins Elec., Inc. v. O'Fallon Fire Prot. Dist.,
813 F.3d 1124, 1129 (8th Cir. 2016). We review the denial of a preliminary
injunction for an abuse of discretiоn. Wilson v. City of Bel-Nor,
A.
The First Amendment, made applicable to the states by the Fourteenth
Amendment, prohibits the government from “abridging the freedom of speech.” U.S.
Const. amend. I; see Gitlow v. New York,
Arkansas Times argues that the Act imposes an unconstitutional condition “by
prohibiting government contractors from participating in politically-motivated
consumer boycotts [of Israel].” The State does not contest that the Act imposes a
condition on Arkansas Times as a government contractor. See Umbehr,
In its challenge to the Act, Arkansas Times relies heavily on the Supreme
Court’s ruling in N.A.A.C.P. v. Claiborne Hardware Co.,
*9
The State counters by citing to the Supreme Court’s decision in FAIR. In
FAIR, several law schools refused to allow military recruiters on campus in protest
of the military’s “don’t ask, don’t tell” policy, which excluded openly gay and lesbian
persons from serving in the military.
The State says this case is indistinguishable from FAIR because a decision not to purchase Israeli goods, like the decision to bar military recruiters from campus, is “all but invisible absent explanatory speech.” According to the State, “a boycott of Israel is [simply] not expressive conduct,” and as such is not entitled to First Amendment protection. But the comparison is not an exact fit because FAIR did not concern a boycott. In FAIR, the Supreme Court addressed the Solomon Amendment, which gave universities “a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds.” Id. at 58. The Court thus focused narrowly on the law schools’ conduct in relation to military recruiters and never characterized it more broadly as a “boycott.” Here, we are faced with a statute that expressly concerns and prohibits “boycotts.” See Ark. Code Ann. § 25-1-501 et seq. (the terms “boycott Israel,” “boycotts of Israel,” аnd simply “boycott”).
*10
And the Supreme Court has reiterated since Claiborne that at least some
elements of a boycott are entitled to First Amendment protection. Fed. Trade
Comm’n v. Superior Ct. Trial Lawyers Ass’n,
In resрonse to the CJA lawyers’ argument that their conduct was
constitutionally protected, the Court said it was “clear that the [lawyers’] efforts to
publicize the boycott, to explain the merits of its cause, and to lobby District officials
. . . were fully protected by the First Amendment.” Id. at 426. The closer question
was whether the FTC could prohibit their concerted refusal to accept further CJA
assignments. Id. Distinguishing this boycott from the one in Claiborne, the Court
held that because “the undenied objective of their boycott was an economic advantage
for those who agreed to participate,” the lawyers’ conduct was not constitutionally
protected. Id. In contrast to the politically-motivated boycott in Claiborne, through
which Black Mississippians sought “equal respect and equal treatment to which they
were constitutionally entitled,” the CJA lawyers’ “immediate objective was to
increase the price that they would be paid for their services.” Id. at 426–27. Thus,
the Court concluded, to the extent the lawyers refused to accept case assignments
until they received a raise in their hourly rate, they had engaged in an “economic
boycott” that was not afforded First Amendment protection. Id. (citing Claiborne,
With this background, we understand that at least some—but not necessarily all—elements of a boycott are protected by the First Amendment. Thus, we must *11 determine what the Act prohibits. Does it prohibit solely commercial activity that lacks any expressive or political value? Or does it also prohibit those elements of a boycott, such as speech and association, that we know enjoy First Amendment protection? We must answer these questions before we can determine whether the Act imposes an unconstitutional condition on companies seeking to contract with the State of Arkansas. We turn, then, to the Act itself.
B.
We review questions of statutory interpretation de novo, Am. Growers Ins. Co.
v. Fed. Crop Ins. Corp.,
Under Arkansas law “[a] statute is considered ambiguous if it is open to more than one construction.” Id. “When a statute is ambiguous, [we] must interpret it according to legislative intent and [our] review becomes an examination of the whole act.” Id. We “review[] the act in its entirety,” and “will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part.” *12 Id. When necessary, we also “must look at the legislative history, the language, and the subject matter involved.” Id.
We begin with section 503(a)(1) of the Act. This section states that “a public entity shall not” enter into a contract with a company unless that 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 Act then defines “boycott of Israel” to mean (1) “engaging in refusals to deal”; (2) “terminating business activities”; or (3) “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.” Id. § 25-1-502(1)(A)(i). Neither party seriously disputes that the first two terms in the definition of a “boycott of Israel” are limited to econоmic or commercial activities. Assuming without deciding that the Act would not run afoul of the First Amendment if it were limited to purely economic activity, our focus is on whether the term “other actions” includes activity that is constitutionally protected.
The phrase “other actions” is not defined in the Act, but it is limited by language that follows it: other actions “that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.” The State urges us to conclude that the phrase “other actions” is limited to commercial conduct, which it asserts is non-expressive and not protected by the First Amendment. But the State’s narrow reading of the definition of “boycott of Israel” is not the only reasonable interpretation. Actions “intended to limit commercial relations with Israel” could encompass a much broader array of conduct than only commercial conduct, at least some of which would be protected by the First Amendment. We are not convinced, from a plain reading of the text, that the Act necessarily allows a company to post anti-Israel signs, donate to causes that promote *13 a boycott of Israel, encourage others to boycott Israel, or even publicly criticize the Act. If a company took any of these actions with the intent to “limit commercial relations with Israel” as a general matter, that conduct would arguably fall within the prohibition.
Because the definition of “boycott Israel” is open to more than one plausible
construction, it is ambiguous. To resolve this ambiguity, we consider the entire Act
and use appropriate tools of statutory construction to interpret the statute consistent
with its legislative intent. See Simpson,
But we must look to the Act as a whole to resolve the ambiguity in its
meaning. See Simpson,
That the term “other actions” captures constitutionally protected activity is
further supported by the Act’s codified legislative findings. Cf. Ark. Charcoal Co.
v. Ark. Pub. Serv. Comm’n,
say nor requires them to say anything.” FAIR,
*15
for enacting it); Manning v. State,
Finally, the facts of this case do nothing to detract from our reading of the term “other actions.” The Act does not include a form certification, see supra note 1, so the Defendants drafted their own certification for Arkansas Times to sign. See Appendix A. According to the only certification form in the record, a contractor must agree and certify that it will not engage in a “boycott of Israel” for the duration of the contract. Yet the certification makes no effort to provide the Act’s definition of “boycott of Israel,” leaving it to the contractor to determine what activity is prohibited. Relying on the ordinary meaning of “boycott,” see supra note 11, a contractor could readily conclude that it was prohibited from both refusing to economically engage with Israel and supporting or promoting a boycott of Israel or Israeli-goods. A contractor that does not want to risk violating the terms of its contract would likely refrain even from activity that is constitutionally protected.
Considering the Act as a whole, we conclude that the term “other actions” in the definition of “boycott Israel” and “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts government *17 contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne. See 458 U.S. at 915. Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights.
C.
Determining that the Act’s condition for cоntracting with Arkansas implicates
the First Amendment does not end our analysis because not all such conditions are
unconstitutional. See e.g., Rust v. Sullivan,
To the extent the dissent suggests that the constitutional аvoidance principle
requires us to adopt the State’s interpretation of the Act, we respectfully disagree.
Although we begin by presuming a challenged statute is constitutional, we assess
whether that statute truly is so by employing principles of statutory interpretation and
“all other interpretative guides [to] give effect to the intent of the legislature.”
Booker v. State,
law and the text of the Act. Supporting or promoting boycotts of Israel
is
сonstitutionally protected under Claiborne, yet the Act requires government
contractors to abstain from such constitutionally protected activity. Without any
explanation of how this condition seeks to “define the limits of [the State’s] spending
program,” it can be viewed only as seeking to “leverage funding to regulate speech
outside the contours of the program itself.” AOSI,
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
KOBES, Circuit Judge, dissenting.
Arkansas prohibits public entities from contracting with companies that boycott Israel by (1) “engaging in refusals to deal”; (2) “tеrminating business activities”; or (3) taking “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. §§ 25-1-503(a)(1), 25-1-502(1)(A)(I). The majority finds that “other actions” broadly bans constitutionally protected activities. I respectfully disagree. The provision is a catch-all for commercial activities that do not fit the first two categories, but have the same purpose—to reduce the company’s business interactions with Israel in a discriminatory way. I think that is clear. To the extent it is ambiguous, I would apply a constitutionally-permissible interpretation and uphold the statute.
Under the canon of
ejusdem generis
, “when general words follow specific
words in a statutory enumeration, the general words are construed tо embrace only
objects similar in nature to those objects enumerated by the preceding specific
*19
words.”
Edwards v. Campbell
,
The majority retreats from this straight-forward analysis because “the State has not provided any example of the type of conduct that, under [its] interpretation of the Act, would fall in the ‘other actions’ category.” Maj. Op. 13. But consider the following: a company begins charging overly-inflated shipping prices for products shipped to Israel to reducе commercial relationships with the country. While this is not a refusal to deal or a termination of business activities, it is another “action . . . intended to limit commercial relations with Israel.” Ark. Code Ann. § 25-1-502(1)(A)(I).
By not applying ejusdem generis, the court is left with an unnecessarily ambiguous clause and so turns to the entire Act, which it claims yields “but one permissible interpretation.” Maj. Op. 16, n.2. Each argument in support of this “one permissible interpretation” is unpersuasive.
The majority first argues that the statute regulates speech because it allows
speech in support of boycotts and association with boycotters to be used as evidence
of participation in prohibited boycotts. But “[t]he First Amendment . . . does not
prohibit the evidentiary use of speech . . . to prove motive or intent.”
Wisconsin v.
*20
Mitchell
,
Next, the court says that the Act’s legislative findings show that “other actions” encompasses protected activity. To get there, the majority says that by stating a broader policy and desire to limit the State’s commercial interactions with those who, among other things, support or promote actions to boycott Israel, the Arkansas Legislature must have taken unconstitutional steps to accomplish these goals. But states have a broad mandate to enact legislation evincing the policy choices of their citizens. We may only hold states back in achieving those goals when they do so by unconstitutional means. Nothing in the text of the operative provision itself suggests overreach (regulation of protected speech) by the Arkansas Legislature, and we should not impute an unconstitutional meaning to a statute that is benign on its face.
This interpretation of the Act’s purpose is also inconsistent when considered with the other legislative findings. The findings express concern for the commercial viability of companies that refuse to do business with Israel and the commercial effect this may have on the state’s finances. For example, Section 25-1-501(3) notes that companiеs that “make discriminatory decisions on the basis of national origin [] impair . . . [their] commercial soundness.” Section 25-1-501(5) observes that companies that discriminate against businesses in Israel are “unduly risky contracting partner[s] or vehicle[s] for investment” because they do not have access to innovation coming from the country. These statements suggest a purely commercial purpose for the statute, and if we consider legislative findings in our analysis, they weigh strongly in favor of upholding the statute.
Finally, the majority argues that the facts of the present case “do nothing to detract from [its] reading of the term ‘other actions.’” Maj. Op. 15. Even if this were true, the facts similarly do not support the majority’s reading. The majority argues that the certification fails to notify the contractor of whаt conduct is prohibited. I disagree. The certification references the statute, see Appendix A, and anyone interested in finding out what conduct is barred can read the definition in Section 502. Even if the majority were correct, vagueness arguments like this are only colorable under the due process clauses, and Arkansas Times did not plead that claim.
Even if I am wrong and the statute is susceptible to the majority’s interpreta-
tion, we have two options: (1) use the entire Act to raise constitutional questions
about “other actions”; or (2) read “other actions” consistent with
ejusdem generis
and
uphold the statute. In Arkansas, “[t]he first and most important rule of statutory
interpretation is that a statute is presumed constitutional and all doubts are resolved
in favor of constitutionality.”
Booker v. State
,
The court’s effort to stretch the term “other actions” is unavailing. The easiest and most natural reading of the statute is constrained: “other actions” is similar to the purely commercial terms preceding and modifying it. I would interpret it accordingly and affirm the district court. I respectfully dissent.
______________________________
*23 APPENDIX A
Notes
[1] The Act does not provide a form certification or additional guidance as to what specific language, if any, a written certification must contain. Arkansas Times was requirеd to sign a form prepared by the Defendants titled, “RESTRICTION OF BOYCOTT OF ISRAEL CERTIFICATION.” See Appendix A.
[2] The Act does not define the term “in a discriminatory manner.”
[3] The Act enumerates the following legislative findings: (1) Boycotts and related tactics have become tools of economic warfare that threaten the sovereignty and security of key allies and trade partners of the United States; (2) The State of Israel is the most prominent target of such boycott activity, which began with but has not been limited to the Arab League boycott adopted in 1945, even before Israel’s declaration of independence and the reestablished national state of the Jewish people; (3) Companies that refuse to deal with United States trade partners such as Israel, or entities that do business with or in such countriеs, make discriminatory decisions on the basis of national origin that impair those companies’ commercial soundness;
[4] To resolve a motion for preliminary injunction, the district court must consider
(1) the threat of irreparable harm to the movant, (2) the balance between the harm and
the injury that granting the injunction would inflict on other interested parties, (3) the
probability that the movant will succeed on the merits, and (4) whether the injunction
is in the public interest. Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d
1094, 1098 (8th Cir. 2013) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981) (en banc)). Regarding the third factor, a movant challenging
a state statute must show it is “likely to prevail on the merits.” Id. (quoting Planned
Parenthood Minn., N.D., S.D. v. Rounds,
[5] Given our ruling, we do not address Arkansas Times’s other arguments on appeal.
[6] Indeed, the word “boycott” is never used in the оpinion. See generally FAIR,
[7] “Boycott Israel” has the same definition under the Act as “boycott of Israel.”
[8] The dissent suggests that we “retreat[] from [a] straight-forward analysis” by using additional tools of statutory interpretation rather than relying on ejusdem generis alone. But as noted above, Arkansas law requires us to review the whole Act to resolve statutory ambiguity, giving “meaning and effect to every word in the statute,” and we decline to restrict our analysis when multiple tools of statutory interpretation aid our understanding. Indeed, Arkansas law counsels that canons of
[11] We also note that the Act uses the singular word “boycott” throughout the
legislative findings. While “boycott of Israel” and “boycott Israel” are defined in the
Act, the word “boycott” is not. Compare id. § 25-1-501(1) (“[b]oycotts and related
tactics”), id. § 25-1-501(2) (“boycott activity”), id. § 25-1-501(6) (“unsanctioned
boycotts”), with id. § 25-1-502(1)(a)(i) (defining “boycott Israel” and “boycott of
Israel”). Under Arkansas law, “[i]n the absence of a statutory definition for a term,
we resort to the plain meaning of a term.” State v. Jernigan,
[12] The district court relied upon the doctrine of constitutional avoidance to
conclude that “other actions” referred to purely commercial conduct. Constitutional
avoidance is the “bedrock principle” that “where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional questions arise and
by the other of which such questions are avoided, [the court] is to adopt the latter” out
of respect for the legislature, assumed to legislate “in the light of constitutional
limitations.” Union Pac. R.R. Co. v. U.S. Dep’t of Homeland Sec.,
[13] The majority criticizes use of ejusdem generis because the doctrine cannot be used to defeat ordinary tools of statutory construction. But its tools are (1) considering the types of evidence permitted to prove intent; (2) reading a policy statement overbroadly and inconsistently with other statements of legislative purpose; and (3) saying that the executive’s enforcement of the statute makes it difficult for people to know what conduct is proscribed. I do not view any of these as ordinary tools of statutory construction.
[14] “[I]mprecise laws can be attacked on their face under two different doctrines.” City of Chicago v. Morales , 527 U.S. 41, 52 (1999). While a statute may be challenged on First Amendment grounds where “impermissible applications of the law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep,’” id. (citation omitted), the majority does not levy that attack here. Instead, its argument more closely resembles a Fifth or Fourteenth Amendment Due Process claim that the statute is “impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests.” Id.
[15] The majority’s initial finding of ambiguity alone may be fatal to its argument. The majority suggests that constitutional avoidance is a canon of last resort, but that is premised on federal principles of statutory interpretation, and “we are bound by a state’s rules of statutory interpretation when reviewing a statute of that state.” Maj. Op. 11 (citation omitted). Booker suggests Arkansas prioritizes constitutional avoidance more than federal courts. 984 S.W.2d at 21. In any case, even if constitutional avoidance is a canon of last resort—it applies here.