Arkansas’s anti-BDS law requiring state contractors to certify they don’t boycott Israel passes constitutional muster, according to the full Court of Appeals for the Eighth Circuit. The court’s decision in the highly watched case of Arkansas Times LP v. Waldrip, handed down this morning, affirmed the lower court decision upholding the state law.
LIF covered the case previously, at:
The case was appealed. A 2021 decision by the Eighth Circuit initially reversed the lower court and claimed the law violated the First Amendment, based on a tortured reading of the statute. The Eighth Circuit then vacated (i.e., rescinded) that decision and ordered the case reheard before all judges of the circuit, instead of just the three-judge panel who had decided it earlier.
The case was reargued on September 21, 2021. Judge Jonathan A. Kobes, who dissented from the vacated 2021 decision, wrote the majority opinion upholding the law. “The basic dispute in this case,” Kobes wrote, “is whether ‘boycotting Israel’ only covers unexpressive commercial conduct, or whether it also prohibits protected expressive conduct.” Briefly, the court upheld the state’s right to regulate boycotts as commercial conduct. While economic boycotts are often accompanied by expressive conduct protected by the First Amendment, Kobes’ majority opinion concluded, the boycott itself is not protected by the First Amendment.
The opinion on this point corrected an absurd misreading of the statute’s so-called catch-all or garbage can provision in the vacated opinion. Frequently, laws will list examples of things that are covered by it, and then add in something like, ‘and other actions.’ That’s exactly what the Arkansas statute does. The court’s opinion explained:
legalinsurrection.com
LIF covered the case previously, at:
- Federal Court upholds constitutionality of Arkansas anti-BDS law
- Lessons Learned On The Frontlines Against BDS
The case was appealed. A 2021 decision by the Eighth Circuit initially reversed the lower court and claimed the law violated the First Amendment, based on a tortured reading of the statute. The Eighth Circuit then vacated (i.e., rescinded) that decision and ordered the case reheard before all judges of the circuit, instead of just the three-judge panel who had decided it earlier.
The case was reargued on September 21, 2021. Judge Jonathan A. Kobes, who dissented from the vacated 2021 decision, wrote the majority opinion upholding the law. “The basic dispute in this case,” Kobes wrote, “is whether ‘boycotting Israel’ only covers unexpressive commercial conduct, or whether it also prohibits protected expressive conduct.” Briefly, the court upheld the state’s right to regulate boycotts as commercial conduct. While economic boycotts are often accompanied by expressive conduct protected by the First Amendment, Kobes’ majority opinion concluded, the boycott itself is not protected by the First Amendment.
The opinion on this point corrected an absurd misreading of the statute’s so-called catch-all or garbage can provision in the vacated opinion. Frequently, laws will list examples of things that are covered by it, and then add in something like, ‘and other actions.’ That’s exactly what the Arkansas statute does. The court’s opinion explained:
Full 8th Circuit Upholds Arkansas Law Barring State Contracting With Israel Boycotters (BDS)
State power to regulate economic activity includes the power to regulate the purely commercial conduct of a boycott, appellate court says.
legalinsurrection.com