Arkansas Times LP v. Waldrip

United States District Court, E.D. Arkansas, Western Division

The Arkansas Times challenges the constitutionality of Act 710, a state statute requiring that companies doing business with state entities certify that they are not boycotting Israel. The relevant facts are as follows:

Act 710 prohibits state entities from entering into contracts with companies for goods or services unless those companies certify in writing that they are not currently engaged in, nor will they engage in for the duration of their contract, a "boycott of Israel." Ark. Code Ann. § 25-1-503(a). It defines a "boycott of Israel" to mean:

[E]ngaging 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.
Id. § 25-1-502(1)(A)(i). If a company fails to provide this written certification, it may still contract with a state entity—but it must first offer to provide its goods or services for at least a twenty percent discount. Id. § 25-1-503(b)(1). The law does not apply to contracts with a potential value of less than $ 1,000. Id. § 25-1-503(b)(2).

This law is not the only one of its kind. Dozens of states have passed similar statutes. See Br. Opp. Pl. Mot. Prelim. Inj. at 2 n.1, Doc. No. 14. There is a somewhat similar federal law authorizing the "President [to] issue regulations prohibiting any United States person ... from ... support[ing] any boycott fostered or imposed by a foreign country against a [friendly] country." 50 U.S.C. § 4607(a)(1) (1979) ; see also Anti-Boycott Act of 2018, Pub. L. No. 115-232, §§ 1771–74.

The Arkansas Times is a weekly newspaper in Arkansas. Its publisher and chief executive officer is Alan Leveritt. For many years, the Times has contracted with Pulaski Technical College, now the University of Arkansas–Pulaski Technical College ("Pulaski Tech"), to publish advertisements for the college. In 2016, the Times entered into twenty-two advertising contracts with Pulaski Tech for amounts over $ 1,000; in 2017, it entered into thirty-six such contracts. In 2018, the Times entered into twenty-five such contracts before October.

In October 2018, the Arkansas Times and Pulaski Tech were preparing to enter into a new advertising contract. Pulaski Tech, consistent with Act 710's certification requirements, informed Leveritt that he would have to certify that the Times is not currently engaging in, nor would for the duration of the contract engage in, a boycott of Israel. Leveritt declined to do so, citing the Times's First Amendment rights. Specifically, the Times takes the position that it should not have to choose between doing business with the state and its right to freedom of expression. Leveritt also asserts that while he was not afforded an opportunity to decline certification and to offer a twenty percent reduction in price, such a discount is unacceptable.

The Times has previously complied with the law's certification provision on dozens of occasions, as it entered into many advertising contracts with Pulaski Tech after Act 710 went into effect. Further, while the paper's editorial board has been critical of Act 710, it appears that the Times has never engaged in, nor ever written in support of, a boycott of Israel. See Lindsey Millar, Arkansas Times challenges law that requires state contractors to pledge not to boycott Israel in federal court , Arkansas Times: Arkansas Blog (Dec. 11, 2018) ("The Times has never participated in a boycott of Israel or editorialized in support of one."). Nothing indicates the Times will engage in such a boycott.

Because of the Times's refusal to certify, the parties did not execute a contract in October 2018, and there are no existing contracts between them. It is also very unlikely that there will be any future advertising contracts between the Times and Pulaski Tech because of this certification requirement.

The Arkansas Times brings this lawsuit asserting that Act 710 violates the First and Fourteenth Amendments. It seeks a preliminary injunction prohibiting the defendants from enforcing the law's certification provision while this suit is pending. Defendants oppose the motion and have moved to dismiss.