The Eighth Circuit's Narrow Decision About the Arkansas BDS Statute

One provision has been invalidated, but the general ban on boycotts of Israel by most state government contractors still stands.

An Arkansas statute generally bans the government from contracting with companies that are boycotting Israel. It defines such boycotts as

• "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" (bullets added).

District Court Judge Brian S. Miller refused to issue a preliminary injunction against the statute, and granted the state's motion to dismiss the challenge. The court concluded that "other actions …" should be read as dealing with other commercial behavior, and not, say, speech urging boycotts:

While the statute also defines a boycott to include "other actions that are intended to limit commercial relations with Israel," this restriction does not include criticism of Act 710 or Israel, calls to boycott Israel, or other types of speech. Familiar canons of statutory interpretation, such as constitutional avoidance and [ejusdem] generis ["[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words"], counsel in favor of interpreting "other actions" to mean commercial conduct similar to the listed items.

And as thus limited to commercial behavior, the court held, the statute likely didn't violate the First Amendment. (Michael Dorf, Andrew Koppelman, and I filed an amicus brief on appeal agreeing that the law is constitutional if read as limited to commercial refusals to deal.)

Friday, the Eighth Circuit (in an opinion by Judge Jane Kelly, joined by Judge Michael Melloy, with Judge Jonathan Kobes dissenting) interpreted the "or other actions" clause more broadly, to include speech promoting boycotts, and therefore held that the law was unconstitutional. The majority expressly didn't opine on the constitutionality of the "refusals to deal[ or] terminating business activities" portion of the law; the majority said,

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 court therefore "reverse[d] and remand[ed] for further proceedings consistent with this opinion."

But what's going to happen now? Here's my sense:

[1.] The District Court, following the Eighth Circuit mandate, will deny the state's motion to dismiss the challenge, and will likely grant a preliminary injunction against the "or other actions" prong.

[2.] But nothing in the panel's decision requires the judge to change his mind as to the constitutionality of the ban on doing business with companies that refuse to deal or terminate business activities. Under Arkansas law (which governs the question whether the provisions of a statute are "severable," so that invalidating one wouldn't require invalidating others),

Except as otherwise specifically provided in this Code, in the event any title, subtitle, chapter, subchapter, section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this Code is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of this Code which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of this Code.

So the "refuse to deal" and "terminate business activities" still stand, and likely won't be blocked by the District Court.

[3.] The challengers will appeal that decision not to block those provisions, with the "are boycotts constitutionally protected?" question that the Eighth Circuit ducked being back before that court. The can has been kicked down the road, but it's still visible a few houses down, and the Eighth Circuit will come up to it again soon enough.