The Eighth Circuit Court of Appeals is taking another look at an Arkansas law that supports trade with Israel. The law specifically targets state contractors and requires them to certify that they won’t boycott commerce with Israel.
A federal district court upheld the law, but a three-judge panel of the Eighth Circuit reversed that decision. Now all the Eighth Circuit judges are deliberating whether the law violates First Amendment protections.
The U.S. Supreme Court has previously ruled that withholding patronage to effect change is protected speech. But supporters of the Arkansas law point out that those boycotts also involved picketing, speeches, and marches.
Nicholas Bronni is the Solicitor General for Arkansas . At arguments in January 2020, he told a three-judge panel of the Eighth Circuit that the Arkansas law simply prohibits boycotting commerce, not the accompanying acts that bring it to public attention.
“Your Honors, the district court below correctly concluded that refusing to buy or sell goods or services based on national origin is neither speech nor inherently expressive,” Bronni said. “That’s true whether the refusal is motivated by politics or prejudice, whether it’s individual or collective, and whether it’s called a boycott or it’s called something else.”
But opponents to the Arkansas law say contractors know they could lose their income from the state if they are perceived as boycotting Israel , and that fact might keep them from openly expressing their political views.
ACLU lawyer Brian Hauss told judges that the government is coming down on one side of an issue and determining if the cause is worthy.
“Americans engage in boycotts across the political spectrum, and if the government has the power to selectively target particular boycott movements for suppression, which is what the government is claiming here, then we’ll likely see legislators in all different states suppressing boycotts based on their political whims,” Hauss said.
The three-judge panel overturned the lower court’s finding that the Arkansas law was constitutional.
Arkansas then asked the Eighth Circuit to hear the case with all judges present. That en banc session was held on Sept. 21, and an opinion is pending. When it’s issued, it will apply to all states in the Eighth Circuit, including South Dakota .
