The U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld Arkansas’ law requiring public contracts to include a certification from the contractor that it will not boycott Israel. In Arkansas Times LP v. Waldrip, (8th Cir., June 22, 2022), the court held that the the statute’s broad definition of “boycott” as including “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories” is only a prohibition on non-expressive commercial decisions that are not protected under the First Amendment’s free speech clause. The court also held that the required certification from the contractor does not amount to “compelled speech”. The suit was brought by a newspaper that contracts with a state college.
Judge Kelley dissented, arguing that the statute was broader than the majority found it to be. He contended that “other actions intended to limit commercial relations with Israel” could encompass more than just commercial activity, including activity that is protected by the First Amendment. For example, it might include posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or publicly criticizing the anti-boycott statute. (The en banc decision reverses a decision by a 3-judge panel of the 8th Circuit handed down last year.) The Forward reports on the decision.