Arkansas Times LP v. Waldrip

Filed on behalf of the Arkansas, an independent weekly newspaper, this lawsuit challenges Arkansas’ Israel anti-boycott law on First and Fourteenth Amendment grounds. The law (Act 710) requires government contractors to either certify they are not boycotting Israel or “Israeli-controlled territories.” The lawsuit claims that the law unconstitutionally penalizes participation in politically-motivated consumer boycotts and suppresses one side of a public debate.

For many years, the Arkansas Times entered into advertising contracts with the University of Arkansas Pulaski Technical College (Pulaski Tech). But in 2018, Pulaski Tech demanded that the Arkansas Times certify that it is not participating in boycotts of Israel in order to renew its advertising contract. Although the Arkansas Times is not boycotting Israel, it refused to sign the certification on principle. Represented by attorneys with the ACLU and ACLU of Arkansas, the Arkansas Times filed this lawsuit asserting that Act 710 unconstitutionally singles out boycotts of Israel for financial penalties.

In January 2019, the district court dismissed the case and the ACLU and ACLU of Arkansas appealed the matter to the U.S. Court of Appeals for the Eighth Circuit. Two years later, a three-judge panel held that Act 710 violates the First Amendment. The full Eighth Circuit decided to rehear the case and upheld the law. The court asserted that, although the First Amendment protects speech and association supporting a boycott, the purchasing decisions at the heart of a boycott are not expressive enough to merit First Amendment protection.

In October 2022, Arkansas Times LP asked the Supreme Court to take up the case and clarify that Arkansas’ content- and viewpoint-discriminatory law violates the First Amendment by penalizing consumer boycotts whose message the state disfavors. In its petition, Arkansas Times LP asserts that the Eighth Circuit’s decision upholding Act 702 conflicts with the Supreme Court’s landmark ruling in NAACP v. Claiborne Hardware Co., a case holding that a civil rights boycott of segregated Southern businesses was protected. If that case means anything at all, Arkansas Times LP argues, it means that a state cannot selectively penalize politically motivated consumer boycotts whose message the state disapproves. The Supreme Court denied Arkansas Times LP’s petition for a writ of certiorari on February 21, 2023.