Free Speech

Eighth Circuit Agrees to Rehear Arkansas Anti-BDS Statute Challenge

The three-judge panel struck down the statute by a 2-to-1 vote, but now the entire Eighth Circuit will consider the case en banc.

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So the court just ordered this afternoon; here is my summary of the February panel decision:

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.)

[February 12], 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.

NEXT: Justice Thomas Takes One For The Team in Borden v. U.S.

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  1. Will the rehearing possibly change the dynamics you describe? Might the en banc court “unduck” the issue that the panel kicked down the road? Would upholding the District court in full be such an unducking?

  2. Refusing to do business with Israeli companies is already illegal in most commercial contexts. It’s discrimination on the basis of national origin. And if it’s unconstitutional to require state contractors to certify that they don’t do that, then it must be just as unconstitutional to require them to certify that they don’t boycott black people, or women, etc.

    1. I think the question is whether the specific prohibited activities as defined by the Arkansas statute include any that have 1st Amendment protection. “Refusing to do business” is just one part of the statute.

      1. Boycott by its definition goes beyond expressing displeasure, into an activity.

        Otherwise you could punch someone in the face because it expresses displeasure at what they’re up to.

        Note I am not commenting on anti-BDS as policy, but then I am not trying to thread a needle to have my cake (boycott) and eat it too (not eviscerate anti-racism or sexism laws.)

        1. …trying to thread a needle to have my cake (boycott) and eat it too (not eviscerate anti-racism or sexism laws.)

          Well put. Either it’s OK to discriminate (“boycott”) by immutable characteristics (gender, race, national origin, etc.) or it isn’t. It’s almost as if they (the boycotters and their defenders) just want to be able to discriminate against certain people. (To paraphrase George Orwell: All animals are equal, but some animals are less equal than others.)

    2. Is it unconstitutional for the federal government to have a trade agreement with one country that is more favorable than a trade agreement with another country? It seems like your argument implies it is, but I rather doubt that the proscription against discrimination on the basis of national origin supports such a conclusion.

      1. The answer is No….It is not unconstitutional for the federal government to have a trade agreement with one country that is more favorable than a trade agreement with another country

    3. efusing to do business with Israeli companies is already illegal in most commercial contexts. It’s discrimination on the basis of national origin.

      Um, what? No it isn’t. And I don’t even know what law you think would apply.

      Title II of the CRA might make it illegal for public accommodations to refuse to do business with an individual Israeli. In the United States. But not to refuse to do business with a company based in Israel.

  3. What business do federal courts have interpreting state statutes against the states who passed them? Why should mere invocation of the first amendment give federal courts a pass from basic standing requirements?

    If I put myself in a refrigerator whenever I see somebody passing by, i can claim that person is chilling me, but does my claim really stand up to scrutiny?

    Fundamental to standing is a genuine threat of prosecution. Absent such a threat, it simply matter if a plaintiff can concoct an argument whereby a statute might be construed to apply to conduct that the defendant want to do.

    A state defendant’s assurances that a state statute doesn’t apply to the plaintiff’s conduct should be accepted by a federal court and lead to dismissal for want of standing. The only exception should be a specific reason to believe the state’s assurance is false. It shouldn’t matter whether or not speech is involved.

    If the state will not in fact prosecute the conduct, the state simply is not the source of any chilling that the plaintiff may be experiemcing when perusing it.

    States are entitled to line their statute books with scary art if they want to.

    1. The Arkansas Times wanted to contract with Pulaski Tech (a public school) to publish the school’s ads. It seems unremarkable that standing was established because (from the district court ruling):

      The Arkansas Times has standing to bring its boycott-restriction claim because it suffered an injury in fact when it lost a government contract after refusing to comply with Act 710’s certification provision.

    2. A state defendant’s assurances that a state statute doesn’t apply to the plaintiff’s conduct should be accepted by a federal court

      A binding interpretation by the state’s highest court that the law doesn’t mean that, sure. (Or any other legally enforceable guarantee.) A non-binding statement by a state official that they are exercising their discretion not to interpret/enforce it that way, no.

  4. As long as they’re consenting adults and have a safe word…wait, I’m using the wrong acronym again, aren’t I?

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