A court ruling last week on Arkansas’ law penalizing companies doing business with the state unless they pledge not to boycott Israel has pushed Arkansas Times Publisher Alan Leveritt to the doorsteps of the U.S. Supreme Court.
The U.S. 8th Circuit Court of Appeals in St. Louis ruled against Arkansas Times on June 22, finding that the law requiring a no-boycott vow does not violate the First Amendment’s protections of free speech.
Arkansas can legally require a 20% discount on state work contracted by companies who refuse to sign the pledge. After first resisting altogether, Arkansas Times has been absorbing the discount to keep state advertising in a difficult publishing industry.
The ruling by the full 8th Circuit reversed a decision by a three-judge panel of its members that had ruled the law, Act 710 of 2017, unconstitutional.
Leveritt told Arkansas Business that he was disappointed in the ruling, and that after consulting with American Civil Liberties Union lawyer Brian Hauss, who joined in the case, he would seek Supreme Court Review.
“Our law … the same cookie cutter law passed in 32 other states, came from a collaboration between the conservative American Legislative Exchange Council (ALEC) and the state of Israel,” Leveritt said, elaborating on a statement published by Arkansas Times, the monthly newsmagazine based in Little Rock. The laws are known as “Anti-BDS” provisions, a reference to the Palestinian-led movement promoting boycotts, divestment and sanctions against Israel. Leveritt says Israel has spent millions of dollars enacting the laws, and has allied with Evangelical Christians determined to configure the Middle East to set the stage for the Second Coming of Christ.
Arkansas State Sen. Bart Hester, R-Cave Springs, “picked this up and ran with it because, in his words, the Second Coming, Armageddon and the end of the world cannot happen until Israel regains its biblical borders. Therefore it is incumbent upon state and federal politicians to do everything to aid Israel. The Jews, by the way, will eventually be going to hell.”
Hester did describe just that theory in the documentary film “Boycott,” which made its debut in December at NYC DOCS and has been submitted for entry in the Hot Springs Documentary Film Festival this year.
But never mind the detour into religious prophecy, Leveritt says. He argues that the law shouldn’t stand because it punishes businesses for refusing to take what is essentially a political position.
But the 8th Circuit ruled that signing the no-boycott pledge was simply a business decision, and not a free-speech issue.
“Under Arkansas’s canons of statutory interpretation, we think the Arkansas Supreme Court would read Act 710 as prohibiting purely commercial, nonexpressive conduct,” the court wrote. “It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.”
Hauss, the ACLU attorney, said the 8th Circuit ruling, which was expected, is simply wrong. “We intend to seek Supreme Court review,” he said in a statement. “The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent and departs from this nation’s longstanding traditions. It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since.”
Leveritt noted the thin profit margins in publishing these days in describing how Arkansas Times is complying with the law. “We are continuing to offer a 20% discount to state agencies, per the law,” he said. Many other companies have agreed to state contract provisions pledging not to boycott Israel, including Arkansas Business and the Arkansas Democrat-Gazette.
Leveritt said giving a 20% discount for state advertising hurts his bottom line. “We are a mission-driven company that runs on a 1% to 2% profit margin. … Fortunately we have sold just over 3,100 online subscriptions to supporters at $110 a year, which has enabled us to pay for our entire newsroom with reader subscriptions.
“This has enabled us to stay profitable despite these kinds of laws,” Leveritt added, describing his magazine as “the voice of the blue community in a red state.” A combination of subscriptions, donations from supporters, print and web advertising and events has kept Arkansas Times “profitable in a difficult environment,” Leveritt said, with a bit of defiance. “We have no need to sign pledges.”
He called the law a case of government overreach into business sovereignty.
Attorney General Leslie Rutledge, representing the state, described the ruling as a “resounding victory for Arkansas’ anti-discrimination law” and reinforcement for “Arkansas’ relationship with our longtime ally, Israel. “Arkansas had to spend taxpayer resources proving that Arkansas Times is not entitled to discriminate.”
The lawsuit dates to 2018, when The Times sued to halt the University of Arkansas System from requiring the no-boycott pledge with orders for advertising. In January 2019, the U.S. District Court for the Eastern District of Arkansas sided with the state and dismissed the action. In February of that year, a three-judge panel reversed the lower court, siding with The Times.
The case was reargued last September, setting the stage for this month’s ruling by the full 8th Circuit.