By Hannah Adams
ST. LOUIS, MO — Arkansas Times LP has filed a petition for a writ of certiorari of the U.S. Court of Appeals for the Eighth Circuit here, adding to an ongoing legal dispute regarding Israeli boycotts that started in 2017.
On August 3, 2017, the Arkansas General Assembly enacted Act 710, which requires government contractors to certify they are involved with, and won’t become involved in boycotts of Israel, which is the target of boycotts because of its alleged brutality behavior toward Palestinians.
Specifically, the act decrees a public entity shall not “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.”
In October 2018, the Arkansas Times and the UABT were preparing to enter into new contracts for Pulaski Tech’s advertising in the newspaper.
Pulaski Tech’s Director of Purchasing and Inventory, acting on behalf of the UABT, informed Alan Leveritt, Arkansas Times LP’s publisher and chief executive officer, that he would have to sign a certification stating the Arkansas Times will not engage in a boycott of Israel for the duration of the contract.
The UABT informed Leveritt that absent this certification, they would refuse to contract with the Arkansas Times for any additional advertising. Leveritt, as CEO of the Arkansas Times, declined to sign the certification.
“The Arkansas Times refuses to enter into an advertising contract with UABT that is
conditioned on the unconstitutional suppression and compulsion of protected speech
under the First Amendment,” said Leveritt.
The Arkansas Times said it was unwilling to accept a 20 percent reduction in payment by UABT for its advertising services.
The Arkansas Times argued the Act’s certification requirement violates the First Amendment because it bars participation in political boycotts, scrutinizes protected expression on the basis of its subject matter and viewpoint, and compels speech.
The district court denied the Arkansas Times’ motion for preliminary injunction and dismissed the suit.
The court noted that while the Arkansas Times has standing to challenge the Act because it has lost contracts as a result of its refusal to comply with the Act’s certification requirement, the Act itself does not violate the First Amendment.
The panel concluded that, because the Act requires contractors to quit participation in “indisputably protected First Amendment activities, it wrongfully diminishes private speech outside the scope of government-funded work.”
The Eighth Circuit granted en banc rehearing, and on June 22, affirmed the district court’s order denying the Arkansas Times’ motion for a preliminary injunction and dismissing the case.
Arkansas Times LP argues the court should grant the petition for certiorari for three reasons. First, “this Court’s intervention is necessary to correct the en banc Eighth Circuit’s departure from Claiborne Hardware — one of this Court’s “most significant” First Amendment Precedents.”
Second, “the opinion…creates judicial uncertainty. Numerous federal district courts have Applied Claiborne Hardware to hold that anti-boycott laws like the one at issue here violate the First Amendment.”
Finally, “this case addresses a question of national Importance,” as Arkansas Times LP recognized in its petition for en banc rehearing.
