Arkansas Times LP v. Mark Waldrip ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1378
___________________________
Arkansas Times LP
lllllllllllllllllllllPlaintiff - Appellant
v.
Mark Waldrip, in his official capacity as Trustee of the University of Arkansas
Board of Trustees; John Goodson, in his official capacity as Trustee of the
University of Arkansas Board of Trustees; Kelly Eichler, in her official capacity as
Trustee of the University of Arkansas Board of Trustees; David Pryor, in his
official capacity as Trustee of the University of Arkansas Board of Trustees;
Stephen Broughton, in his official capacity as Trustee of the University of
Arkansas Board of Trustees; C C Gibson, in his official capacity as Trustee of the
University of Arkansas Board of Trustees; Tommy Boyer, in his official capacity
as Trustee of the University of Arkansas Board of Trustees; Steve Cox, in his
official capacity as Trustee of the University of Arkansas Board of Trustees
lllllllllllllllllllllDefendants - Appellees
------------------------------
First Amendment Scholars; Council on American Islamic Relations; American
Friends Service Committee; Israel Palestine Mission Network of the Presbyterian
Church; A Jewish Voice for Peace Inc.; U.S. Campaign for Palestinian Rights;
U.S. Palestinian Community Network; U.S. Campaign for the Academic and
Cultural Boycott of Israel; Friends of Sabeel North America; Institute for Free
Speech; Foundation for Individual Rights in Education; Palestine Legal; The
Center for Constitutional Rights; Bahia Amawi; National Lawyers Guild; Project
South; J Street; T'ruah: The Rabbinic Call for Human Rights; 15 Media
Organizations; Reporters Committee for Freedom of the Press; Lawrence Glickman
lllllllllllllllllllllAmici on Behalf of Appellant(s)
Michael C. Dorf; Eugene Volokh; Zachor Legal Institute; Andrew Koppelman;
Shurat Hadin-Israel Law Center; American Jewish Committee; Christians United
for Israel; Israeli-American Coalition for Action; The Israel Project; Agudath
Israel of America; The Union of Orthodox Jewish Congregations of America;
Standwithus; State of Arizona; State of Florida; State of Georgia; State of Indiana;
State of Missouri; State of Ohio; State of Texas; State of Utah; State of West
Virginia; The Louis D. Brandeis Center Inc.; The American Center of Law and Justice
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 15, 2020
Filed: February 12, 2021
____________
Before KELLY, MELLOY, and KOBES, Circuit Judges.
____________
KELLY, Circuit Judge,
Arkansas Times LP (Arkansas Times) sued various members of the University
of Arkansas Board of Trustees (UABT) in their official capacities as trustees
(collectively, the Defendants) concerning Arkansas Act 710 of 2017 (the Act).
Arkansas Times sought a preliminary injunction enjoining enforcement of the Act,
alleging that it violates the First and Fourteenth Amendments. The Defendants,
represented by the Arkansas Attorney General’s Office (the State), moved to dismiss
the case. The district court denied Arkansas Times’s motion for a preliminary
injunction and dismissed the case. Arkansas Times appeals.
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I.
In 2017, Arkansas enacted Arkansas Act 710, titled “An Act to Prohibit Public
Entities from Contracting with and Investing in Companies That Boycott Israel; and
for Other Purposes.” The Act provides, in pertinent part:
(a) Except as provided under subsection (b) of this section, a public entity shall
not:
(1) Enter into a contract with a company to acquire or dispose of
services, supplies, information technology, or construction unless the
contract includes a written certification1 that the person or company is
not currently engaged in, and agrees for the duration of the contract not
to engage in, a boycott of Israel; or
(2) Engage in boycotts of Israel.
(b) This section does not apply to:
(1) A company that fails to meet the requirements under subdivision
(a)(1) of this section but offers to provide the goods or services for at
least twenty percent (20%) less than the lowest certifying business; or
(2) Contracts with a total potential value of less than one thousand
dollars ($1,000).
Ark. Code Ann. § 25-1-503 (2017).
1
The Act does not provide a form certification or additional guidance as to what
specific language, if any, a written certification must contain. Arkansas Times was
required to sign a form prepared by the Defendants titled, “RESTRICTION OF
BOYCOTT OF ISRAEL CERTIFICATION.” See Appendix A.
-3-
The Act defines “boycott of Israel” and outlines evidence that may be
considered to determine whether a company is engaging in a boycott of Israel:
(1)(A)(I) “Boycott Israel” and “boycott of Israel” means engaging 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.2
[. . .]
(B) A company’s statement that it is participating in boycotts of Israel,
or that it has taken the boycott action at the request, in compliance with,
or in furtherance of calls for a boycott of Israel, can be considered by the
Arkansas Development Finance Authority as a type of evidence, among
others, that a company is participating in a boycott of Israel.
Id. § 25-1-502(1). Finally, for our present purposes, the Act includes codified
legislative findings. Id. § 25-1-501.3
2
The Act does not define the term “in a discriminatory manner.”
3
The Act enumerates the following legislative findings:
(1) Boycotts and related tactics have become tools of economic warfare that
threaten the sovereignty and security of key allies and trade partners of the
United States;
(2) The State of Israel is the most prominent target of such boycott activity,
which began with but has not been limited to the Arab League boycott adopted
in 1945, even before Israel’s declaration of independence and the reestablished
national state of the Jewish people;
(3) Companies that refuse to deal with United States trade partners such as
Israel, or entities that do business with or in such countries, make
discriminatory decisions on the basis of national origin that impair those
companies’ commercial soundness;
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Arkansas Times operates a weekly newspaper, the Arkansas Times, as well as
other publications. For many years, Arkansas Times contracted with Pulaski
Technical College (Pulaski Tech), located in North Little Rock, Arkansas, to run paid
advertisements for the college in Arkansas Times’s publications. The college became
part of the public University of Arkansas System in 2017, at which point Arkansas
Times began to work with UABT, which had the authority to enter into contracts for
goods or services on Pulaski Tech’s behalf, to continue running paid advertisements
for the college. Arkansas Times and UABT contracted to run advertisements for
Pulaski Tech through September 2018.
In October 2018, as the parties were preparing to enter into a new advertising
contract for Pulaski Tech, UABT asked Arkansas Times to sign a written certification
(4) It is the public policy of the United States, as enshrined in several federal
acts, to oppose boycotts against Israel, and the United States Congress has
concluded as a matter of national trade policy that cooperation with Israel
materially benefits United States companies and improves American
competitiveness;
(5) Israel in particular is known for its dynamic and innovative approach in
many business sectors, and therefore a company’s decision to discriminate
against Israel, Israeli entities, or entities that do business with or in Israel, is an
unsound business practice, making the company an unduly risky contracting
partner or vehicle for investment; and
(6) Arkansas seeks to act to implement the United States Congress’s
announced policy of “examining a company’s promotion or compliance with
unsanctioned boycotts, divestment from, or sanctions against Israel as part of
its consideration in awarding grants and contracts and supports the divestment
of state assets from companies that support or promote actions to boycott,
divest from, or sanction Israel.”
Id. § 25-1-501.
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as required under the Act. Pursuant to the certification, Arkansas Times was to
“agree and certif[y] that they do not currently boycott Israel, and will not boycott
Israel during any time in which they are entering into, or while in contract, with
[Pulaski Tech].” See Appendix A. Arkansas Times refused to sign, and as a result
the parties did not renew their advertising contract. Arkansas Times then brought the
present suit seeking injunctive and declaratory relief, on the grounds that the Act
violates the First and Fourteenth Amendments. The district court denied Arkansas
Times’s motion for a preliminary injunction and granted the Defendants’ motion to
dismiss. The district court concluded that a boycott of Israel, as defined by the Act,
is “neither speech nor inherently expressive conduct” and is thus not entitled to First
Amendment protection. Arkansas Times appealed.
II.
We review de novo the district court’s decision to grant a motion to dismiss,
considering as true all facts alleged in the complaint and drawing all reasonable
inferences in favor of the plaintiff. Higgins Elec., Inc. v. O'Fallon Fire Prot. Dist.,
813 F.3d 1124, 1129 (8th Cir. 2016). We review the denial of a preliminary
injunction for an abuse of discretion.4 Wilson v. City of Bel-Nor, 924 F.3d 995, 999
(8th Cir. 2019).
4
To resolve a motion for preliminary injunction, the district court must consider
(1) the threat of irreparable harm to the movant, (2) the balance between the harm and
the injury that granting the injunction would inflict on other interested parties, (3) the
probability that the movant will succeed on the merits, and (4) whether the injunction
is in the public interest. Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d
1094, 1098 (8th Cir. 2013) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981) (en banc)). Regarding the third factor, a movant challenging
a state statute must show it is “likely to prevail on the merits.” Id. (quoting Planned
Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 731–33 & n.4 (8th Cir. 2008)
(en banc)).
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A.
The First Amendment, made applicable to the states by the Fourteenth
Amendment, prohibits the government from “abridging the freedom of speech.” U.S.
Const. amend. I; see Gitlow v. New York, 268 U.S. 652, 666 (1925) (noting “freedom
of speech . . . [is] among the fundamental personal rights and ‘liberties’ protected by
the due process clause of the Fourteenth Amendment from impairment by the
States”). Under the unconstitutional conditions doctrine, “the Government may not
deny a benefit to a person on a basis that infringes his constitutionally protected
freedom of speech even if he has no entitlement to that benefit.” Bd. of Cnty.
Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 681 (1996) (cleaned up)
(quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The doctrine
“[r]ecogniz[es] that constitutional violations may arise from the deterrent, or
‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against
the exercise of First Amendment rights.” Id. As a result, the government cannot,
through funding conditions, indirectly impair the freedom of speech “which if directly
attempted would be unconstitutional.” Speiser v. Randall, 357 U.S. 513, 518 (1958);
see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47,
59–60 (2006).
Arkansas Times argues5 that the Act imposes an unconstitutional condition “by
prohibiting government contractors from participating in politically-motivated
consumer boycotts [of Israel].” The State does not contest that the Act imposes a
condition on Arkansas Times as a government contractor. See Umbehr, 518 U.S. at
677 (applying unconstitutional conditions doctrine to independent government
contractors who derive a financial benefit from contracting with the government).
But it argues that the condition is permissible because boycotts of Israel, as defined
5
Given our ruling, we do not address Arkansas Times’s other arguments on
appeal.
-7-
by the Act, are not “inherently expressive” conduct subject to First Amendment
protection.
In its challenge to the Act, Arkansas Times relies heavily on the Supreme
Court’s ruling in N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982). In
that case, the Court considered a boycott by Black citizens of White merchants in two
Mississippi counties. Id. at 888. Boycott participants purchased goods and services
exclusively from Black-owned stores but also used speeches, nonviolent picketing,
and pamphleting to put economic pressure on White-owned businesses. Id. at 900–01,
907–09. The boycott’s “acknowledged purpose was to secure compliance by both
civic and business leaders with a lengthy list of demands for equality and racial
justice,” in part by causing “the [boycotted] merchants [to] sustain economic injury
as a result of their campaign.” Id. at 907, 914. Several of the merchants filed suit to
recover losses caused by the boycott and to enjoin future boycott activity. Id. at 889.
The Supreme Court rejected the merchants’ claims and held, in relevant part,
that the “nonviolent elements of [the boycott we]re entitled to the protection of the
First Amendment.” Id. at 915. These nonviolent elements included “speech,
assembly, association, and petition,” through which the boycotters “sought to change
a social order.” Id. at 911–12. The boycotters’ goal was to influence governmental
action, and it was foreseeable that the boycott would cause merchants economic harm.
Even so, the Court held that “[t]he right of the States to regulate economic activity
could not justify a complete prohibition against a nonviolent, politically motivated
boycott designed to force governmental and economic change.” Id. at 914; see
Beverly Hills Foodland, Inc. v. United Food & Comm. Workers Union, Local 655,
39 F.3d 191, 197 (8th Cir. 1994). Arkansas Times asserts that a boycott of Israel is
necessarily politically motivated and that any effort to restrict a government
contractor’s ability to participate in such a boycott is, as a result, an unconstitutional
condition.
-8-
The State counters by citing to the Supreme Court’s decision in FAIR. In
FAIR, several law schools refused to allow military recruiters on campus in protest
of the military’s “don’t ask, don’t tell” policy, which excluded openly gay and lesbian
persons from serving in the military. 547 U.S. at 66; see Telescope Media Grp. v.
Lucero, 936 F.3d 740, 758 (8th Cir. 2019). The Court concluded that the law
schools’ refusal was not protected by the First Amendment because it was not
inherently expressive conduct. The Court explained that “[t]he expressive component
of a law school’s actions is created not by the conduct but by the speech that
accompanies it.” FAIR, 547 U.S. at 66. Instead, the actions of the law schools would
be expressive only if they combined their conduct with speech that explained it.
Without the accompanying speech, no one would understand why they refused to
allow military recruiters on campus.
The State says this case is indistinguishable from FAIR because a decision not
to purchase Israeli goods, like the decision to bar military recruiters from campus, is
“all but invisible absent explanatory speech.” According to the State, “a boycott of
Israel is [simply] not expressive conduct,” and as such is not entitled to First
Amendment protection. But the comparison is not an exact fit because FAIR did not
concern a boycott. In FAIR, the Supreme Court addressed the Solomon Amendment,
which gave universities “a choice: Either allow military recruiters the same access to
students afforded any other recruiter or forgo certain federal funds.” Id. at 58. The
Court thus focused narrowly on the law schools’ conduct in relation to military
recruiters and never characterized it more broadly as a “boycott.”6 Here, we are faced
with a statute that expressly concerns and prohibits “boycotts.” See Ark. Code Ann.
§ 25-1-501 et seq. (the terms “boycott Israel,” “boycotts of Israel,” and simply
“boycott”).
6
Indeed, the word “boycott” is never used in the opinion. See generally FAIR,
547 U.S. 47.
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And the Supreme Court has reiterated since Claiborne that at least some
elements of a boycott are entitled to First Amendment protection. Fed. Trade
Comm’n v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990). In Trial Lawyers,
a group of Criminal Justice Act (CJA) lawyers refused to accept any further
assignments to represent indigent criminal defendants until they received an increase
in compensation. Id. at 426. The Federal Trade Commission (FTC) concluded that
the lawyers’ “coercive, concerted refusal to deal” was an illegal boycott under the
antitrust laws. The FTC then entered a cease-and-desist order “to prohibit the
respondents from initiating another boycott . . . whenever they become dissatisfied
with the results or pace of the city’s legislative process.” Id. at 419–20.
In response to the CJA lawyers’ argument that their conduct was
constitutionally protected, the Court said it was “clear that the [lawyers’] efforts to
publicize the boycott, to explain the merits of its cause, and to lobby District officials
. . . were fully protected by the First Amendment.” Id. at 426. The closer question
was whether the FTC could prohibit their concerted refusal to accept further CJA
assignments. Id. Distinguishing this boycott from the one in Claiborne, the Court
held that because “the undenied objective of their boycott was an economic advantage
for those who agreed to participate,” the lawyers’ conduct was not constitutionally
protected. Id. In contrast to the politically-motivated boycott in Claiborne, through
which Black Mississippians sought “equal respect and equal treatment to which they
were constitutionally entitled,” the CJA lawyers’ “immediate objective was to
increase the price that they would be paid for their services.” Id. at 426–27. Thus,
the Court concluded, to the extent the lawyers refused to accept case assignments
until they received a raise in their hourly rate, they had engaged in an “economic
boycott” that was not afforded First Amendment protection. Id. (citing Claiborne,
548 U.S. at 914–15).
With this background, we understand that at least some—but not necessarily
all—elements of a boycott are protected by the First Amendment. Thus, we must
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determine what the Act prohibits. Does it prohibit solely commercial activity that
lacks any expressive or political value? Or does it also prohibit those elements of a
boycott, such as speech and association, that we know enjoy First Amendment
protection? We must answer these questions before we can determine whether the
Act imposes an unconstitutional condition on companies seeking to contract with the
State of Arkansas. We turn, then, to the Act itself.
B.
We review questions of statutory interpretation de novo, Am. Growers Ins. Co.
v. Fed. Crop Ins. Corp., 532 F.3d 797, 803 (8th Cir. 2008), and we are bound by a
state’s rules of statutory interpretation when reviewing a statute of that state. See,
e.g., Roubideaux v. N.D. Dep’t of Corr. & Rehab., 570 F.3d 966, 972 (8th Cir. 2009)
(applying North Dakota statutory interpretation principles to North Dakota law).
Under Arkansas law, “[t]he basic rule of statutory construction is to give effect to the
intent of the legislature.” Simpson v. Cavalry SPV I, LLC, 440 S.W.3d 335, 337
(Ark. 2014). “Where the language of a statute is plain and unambiguous, [the] court
determines the legislative intent from the ordinary meaning of the language used.”
Id. We are to “construe[] the statute so that no word is left void, superfluous, or
insignificant,” giving “meaning and effect to every word in the statute, if possible.”
Id. at 338. “If the language of a statute is clear and unambiguous and conveys a clear
and definite meaning, it is unnecessary to resort to the rules of statutory
interpretation.” Id.Under Arkansas law “[a] statute is considered ambiguous if it is open to more
than one construction.” Id. “When a statute is ambiguous, [we] must interpret it
according to legislative intent and [our] review becomes an examination of the whole
act.” Id. We “review[] the act in its entirety,” and “will reconcile provisions to make
them consistent, harmonious, and sensible in an effort to give effect to every part.”
-11-
Id. When necessary, we also “must look at the legislative history, the language, and
the subject matter involved.” Id.We begin with section 503(a)(1) of the Act. This section states that “a public
entity shall not” enter into a contract with a company unless that company “is not
currently engaged in, and agrees for the duration of the contract not to engage in, a
boycott of Israel.” Ark. Code Ann. § 25-1-503(a)(1). The Act then defines “boycott
of Israel” to mean7 (1) “engaging in refusals to deal”; (2) “terminating business
activities”; or (3) “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). Neither party
seriously disputes that the first two terms in the definition of a “boycott of Israel” are
limited to economic or commercial activities. Assuming without deciding that the
Act would not run afoul of the First Amendment if it were limited to purely economic
activity, our focus is on whether the term “other actions” includes activity that is
constitutionally protected.
The phrase “other actions” is not defined in the Act, but it is limited by
language that follows it: other actions “that are intended to limit commercial relations
with Israel, or persons or entities doing business in Israel or in Israeli-controlled
territories.” The State urges us to conclude that the phrase “other actions” is limited
to commercial conduct, which it asserts is non-expressive and not protected by the
First Amendment. But the State’s narrow reading of the definition of “boycott of
Israel” is not the only reasonable interpretation. Actions “intended to limit
commercial relations with Israel” could encompass a much broader array of conduct
than only commercial conduct, at least some of which would be protected by the First
Amendment. We are not convinced, from a plain reading of the text, that the Act
necessarily allows a company to post anti-Israel signs, donate to causes that promote
7
“Boycott Israel” has the same definition under the Act as “boycott of Israel.”
-12-
a boycott of Israel, encourage others to boycott Israel, or even publicly criticize the
Act. If a company took any of these actions with the intent to “limit commercial
relations with Israel” as a general matter, that conduct would arguably fall within the
prohibition.
Because the definition of “boycott Israel” is open to more than one plausible
construction, it is ambiguous. To resolve this ambiguity, we consider the entire Act
and use appropriate tools of statutory construction to interpret the statute consistent
with its legislative intent. See Simpson, 440 S.W.3d at 338; Curtis Lumber Co. v. La.
Pac. Corp., 618 F.3d 762, 776 (8th Cir. 2010). We recognize that the district court
employed ejusdem generis, a canon of construction that counsels “when general
words follow specific words in a statutory enumeration the general words are
construed to embrace only objects similar in nature to those objects enumerated by
the preceding words,” to understand the meaning of the phrase “other actions.”
Hanley v. Ark. State Claims Comm’n, 970 S.W.2d 198, 201 (Ark. 1998). Applied to
the Act, this canon suggests that the term “other actions” should be read narrowly to
include only conduct similar in kind to the terms that precede it: “refusals to deal” and
“terminating business activities.” Under this reading, “other actions” would refer
only to commercial activity (or inactivity) akin to not economically engaging with
Israel. Notably, the State has not provided any example of the type of conduct that,
under their interpretation of the Act, would fall in the “other actions” category.
But we must look to the Act as a whole to resolve the ambiguity in its
meaning.8 See Simpson, 440 S.W.3d at 338 (explaining that, under Arkansas law, we
8
The dissent suggests that we “retreat[] from [a] straight-forward analysis” by
using additional tools of statutory interpretation rather than relying on ejusdem
generis alone. But as noted above, Arkansas law requires us to review the whole Act
to resolve statutory ambiguity, giving “meaning and effect to every word in the
statute,” and we decline to restrict our analysis when multiple tools of statutory
interpretation aid our understanding. Indeed, Arkansas law counsels that canons of
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look to the statute as a whole to interpret it according to the legislative intent). When
we do, we see that it permits the State to consider specified “type[s] of evidence” to
determine whether “a company is participating in a boycott of Israel.” This evidence
includes the company’s own “statement that it is participating in boycotts of Israel.”
Additionally, evidence that a government contractor “has taken the boycott action”9
in association with others (i.e., “at the request, in compliance with, or in furtherance
of calls for a boycott of Israel”) can be considered to enforce the Act. At a minimum,
therefore, a company’s speech and association with others may be considered to
determine whether the company is participating in a “boycott of Israel,” and the State
may refuse to enter into a contract with the company on that basis, thereby limiting
what a company may say or do in support of such a boycott.10 In this way, the Act
implicates the First Amendment rights of speech, assembly, association, and petition
recognized to be constitutionally protected boycott activity. See Claiborne, 458 U.S.
at 911–12; Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1041–43 (D. Ariz. 2018),
vacated as moot, 789 F. App’x 589 (9th Cir. 2020); Koontz v. Watson, 283 F. Supp.
3d 1007, 1021–22 (D. Kan. 2018).
That the term “other actions” captures constitutionally protected activity is
further supported by the Act’s codified legislative findings. Cf. Ark. Charcoal Co.
v. Ark. Pub. Serv. Comm’n, 773 S.W.2d 427, 429 (Ark. 1989) (relying on statute’s
general legislative findings to determine the General Assembly’s intent and purposes
construction like ejusdem generis “are only aids to judicial interpretation, and they
will not be applied when there is no ambiguity, to defeat legislative intent and
purpose, to make general words meaningless, or to reach a conclusion inconsistent
with other rules of construction.” Seiz Co. v. Ark. State Highway & Transp. Dep’t,
324 S.W.3d 336, 342 (Ark. 2009) (second emphasis added).
9
The Act does not define “boycott action.”
10
In contrast, “[t]he Solomon Amendment neither limits what law schools may
say nor requires them to say anything.” FAIR, 547 U.S. at 60.
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for enacting it); Manning v. State, 956 S.W.2d 184, 186 (Ark. 1997) (same). Those
findings state that Arkansas seeks to implement the policy of “examining a
company’s promotion or compliance with unsanctioned boycotts, divestment from,
or sanctions against Israel as part of its consideration in awarding grants and
contracts.” Ark. Code Ann. § 25-1-501(6) (emphasis added). The findings further
state that Arkansas “supports the divestment of state assets from companies that
support or promote actions to boycott, divest from, or sanction Israel.” Id. (emphasis
added). Thus, Arkansas seeks not only to avoid contracting with companies that
refuse to do business with Israel. It also seeks to avoid contracting with anyone who
supports or promotes such activity.11
11
We also note that the Act uses the singular word “boycott” throughout the
legislative findings. While “boycott of Israel” and “boycott Israel” are defined in the
Act, the word “boycott” is not. Compare id. § 25-1-501(1) (“[b]oycotts and related
tactics”), id. § 25-1-501(2) (“boycott activity”), id. § 25-1-501(6) (“unsanctioned
boycotts”), with id. § 25-1-502(1)(a)(i) (defining “boycott Israel” and “boycott of
Israel”). Under Arkansas law, “[i]n the absence of a statutory definition for a term,
we resort to the plain meaning of a term.” State v. Jernigan, 385 S.W.3d 776, 781
(Ark. 2011). According to dictionaries from the time the Act was enacted, the plain
meaning of “boycott” involves an inherent element of expression. See, e.g., Boycott,
Oxford English Dictionary (3d ed. 2008) (“To withdraw from commercial or social
interaction with (a group, nation, person, etc.) as a protest or punishment; to refuse
to handle or buy (goods), or refuse to participate in (an event, meeting, etc.), as a
protest.”); Boycott, Merriam-Webster Dictionary (11th ed. 2003) (“to engage in a
concerted refusal to have dealings with (a person, a store, an organization, etc.)
usually to express disapproval or to force acceptance of certain conditions”); Boycott,
Cambridge Advanced Learner’s Dictionary (4th ed. 2013) (“to refuse to buy a product
or take part in an activity as a way of expressing strong disapproval”); Boycott,
American Heritage Dictionary (5th ed. 2011) (“To abstain from or act together in
abstaining from using, buying, dealing with, or participating in as an expression of
protest or disfavor or as a means of coercion.”). These definitions guide our reading
of the legislative findings and suggest that the Act’s intent was to restrict economic
refusals to deal as well as a government contractor’s ability to support or promote
boycotts of Israel through its speech.
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Finally, the facts of this case do nothing to detract from our reading of the term
“other actions.” The Act does not include a form certification, see supra note 1, so
the Defendants drafted their own certification for Arkansas Times to sign. See
Appendix A. According to the only certification form in the record, a contractor must
agree and certify that it will not engage in a “boycott of Israel” for the duration of the
contract. Yet the certification makes no effort to provide the Act’s definition of
“boycott of Israel,” leaving it to the contractor to determine what activity is
prohibited. Relying on the ordinary meaning of “boycott,” see supra note 11, a
contractor could readily conclude that it was prohibited from both refusing to
economically engage with Israel and supporting or promoting a boycott of Israel or
Israeli-goods. A contractor that does not want to risk violating the terms of its
contract would likely refrain even from activity that is constitutionally protected.
Considering the Act as a whole, we conclude that the term “other actions” in
the definition of “boycott Israel” and “boycott of Israel” encompasses more than
“commercial conduct” similar to refusing to deal or terminating business activities.
Instead, the Act requires government contractors, as a condition of contracting with
Arkansas, not to engage in economic refusals to deal with Israel and to limit their
support and promotion of boycotts of Israel.12 As such, the Act restricts government
12
The district court relied upon the doctrine of constitutional avoidance to
conclude that “other actions” referred to purely commercial conduct. Constitutional
avoidance is the “bedrock principle” that “where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional questions arise and
by the other of which such questions are avoided, [the court] is to adopt the latter” out
of respect for the legislature, assumed to legislate “in the light of constitutional
limitations.” Union Pac. R.R. Co. v. U.S. Dep’t of Homeland Sec., 738 F.3d 885,
892–93 (8th Cir. 2013). But “the canon of constitutional avoidance comes into play
only when, after the application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction; and the canon functions as a means of
choosing between them.” Saxton v. Fed. Housing Finance Agency, 901 F.3d 954,
959 (8th Cir. 2018) (quoting Clark v. Martinez, 543 U.S. 371, 381 (2005)). When
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contractors’ ability to participate in speech and other protected, boycott-associated
activities recognized by the Supreme Court in Claiborne. See 458 U.S. at 915.
Therefore, the Act imposes a condition on government contractors that implicates
their First Amendment rights.
C.
Determining that the Act’s condition for contracting with Arkansas implicates
the First Amendment does not end our analysis because not all such conditions are
unconstitutional. See e.g., Rust v. Sullivan, 500 U.S. 173, 198 (1991). A funding
condition unconstitutionally burdens First Amendment rights where it “seek[s] to
leverage funding to regulate speech outside the contours of the program itself.”
Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc. (AOSI), 570 U.S. 205, 214
(2013); see FCC v. League of Women Voters of Cal., 468 U.S. 364, 399–401 (1984).
In response, the State asserts that because “boycotting Israel is not protected by the
First Amendment,” the certification is simply a truthful statement that “provide[s] the
government with information.” But this generalization is inconsistent with both the
considering the whole Act, as Arkansas law requires, there is but one permissible
interpretation—that the Act restricts speech in addition to economic refusals to deal
with Israel.
To the extent the dissent suggests that the constitutional avoidance principle
requires us to adopt the State’s interpretation of the Act, we respectfully disagree.
Although we begin by presuming a challenged statute is constitutional, we assess
whether that statute truly is so by employing principles of statutory interpretation and
“all other interpretative guides [to] give effect to the intent of the legislature.”
Booker v. State, 984 S.W.2d 16, 21 (Ark. 1998); see also Ark. Hearing Instrument
Dispenser Bd. v. Vance, 197 S.W.3d 495, 499 (Ark. 2004) (“If we can construe a
statute as constitutional, we will do so provided that such a construction does not
contravene the intent of the legislature.”). Having done this, we reach the conclusion
that the Act implicates the First Amendment rights of would-be government
contractors.
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law and the text of the Act. Supporting or promoting boycotts of Israel is
constitutionally protected under Claiborne, yet the Act requires government
contractors to abstain from such constitutionally protected activity. Without any
explanation of how this condition seeks to “define the limits of [the State’s] spending
program,” it can be viewed only as seeking to “leverage funding to regulate speech
outside the contours of the program itself.” AOSI, 570 U.S. at 214–15. Thus, the
Act prohibits the contractor from engaging in boycott activity outside the scope of the
contractual relationship “on its own time and dime.” Id. at 218. Such a restriction
violates the First Amendment.
Accordingly, we reverse and remand for further proceedings consistent with
this opinion.
KOBES, Circuit Judge, dissenting.
Arkansas prohibits public entities from contracting with companies that boycott
Israel by (1) “engaging in refusals to deal”; (2) “terminating business activities”; or
(3) taking “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.” Ark. Code Ann. §§ 25-1-503(a)(1), 25-1-502(1)(A)(I).
The majority finds that “other actions” broadly bans constitutionally protected
activities. I respectfully disagree. The provision is a catch-all for commercial
activities that do not fit the first two categories, but have the same purpose—to reduce
the company’s business interactions with Israel in a discriminatory way. I think that
is clear. To the extent it is ambiguous, I would apply a constitutionally-permissible
interpretation and uphold the statute.
Under the canon of ejusdem generis, “when general words follow specific
words in a statutory enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the preceding specific
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words.” Edwards v. Campbell, 370 S.W.3d 250, 253 (Ark. 2010). The principle
squarely applies here. The specific phrases before the “other actions” provi-
sion—“engaging in refusals to deal” and “terminating business activities”—relate
solely to commercial activities. It follows that the more general phrase, “other
actions,” does too.
The majority retreats from this straight-forward analysis because “the State has
not provided any example of the type of conduct that, under [its] interpretation of the
Act, would fall in the ‘other actions’ category.” Maj. Op. 13. But consider the
following: a company begins charging overly-inflated shipping prices for products
shipped to Israel to reduce commercial relationships with the country. While this is
not a refusal to deal or a termination of business activities, it is another
“action . . . intended to limit commercial relations with Israel.” Ark. Code Ann. §
25-1-502(1)(A)(I).
By not applying ejusdem generis, the court is left with an unnecessarily
ambiguous clause and so turns to the entire Act, which it claims yields “but one
permissible interpretation.” Maj. Op. 16, n.2. Each argument in support of this “one
permissible interpretation” is unpersuasive.13
The majority first argues that the statute regulates speech because it allows
speech in support of boycotts and association with boycotters to be used as evidence
of participation in prohibited boycotts. But “[t]he First Amendment . . . does not
prohibit the evidentiary use of speech . . . to prove motive or intent.” Wisconsin v.
13
The majority criticizes use of ejusdem generis because the doctrine cannot be
used to defeat ordinary tools of statutory construction. But its tools are (1)
considering the types of evidence permitted to prove intent; (2) reading a policy
statement overbroadly and inconsistently with other statements of legislative purpose;
and (3) saying that the executive’s enforcement of the statute makes it difficult for
people to know what conduct is proscribed. I do not view any of these as ordinary
tools of statutory construction.
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Mitchell, 508 U.S. 476, 489 (1993). Here, a company only engages in a boycott of
Israel if its “other actions are intended to limit commercial relations with Israel, or
persons or entities doing business in Israel or in Israeli-controlled territories.” Ark.
Code Ann. § 25-1-502(1)(A)(I) (emphasis added). The better (and constitutionally
permissible) understanding of the permitted use of speech here is that it may establish
the element of intent. The prohibited conduct is still commercial.
Next, the court says that the Act’s legislative findings show that “other actions”
encompasses protected activity. To get there, the majority says that by stating a
broader policy and desire to limit the State’s commercial interactions with those who,
among other things, support or promote actions to boycott Israel, the Arkansas
Legislature must have taken unconstitutional steps to accomplish these goals. But
states have a broad mandate to enact legislation evincing the policy choices of their
citizens. We may only hold states back in achieving those goals when they do so by
unconstitutional means. Nothing in the text of the operative provision itself suggests
overreach (regulation of protected speech) by the Arkansas Legislature, and we
should not impute an unconstitutional meaning to a statute that is benign on its face.
This interpretation of the Act’s purpose is also inconsistent when considered
with the other legislative findings. The findings express concern for the commercial
viability of companies that refuse to do business with Israel and the commercial effect
this may have on the state’s finances. For example, Section 25-1-501(3) notes that
companies that “make discriminatory decisions on the basis of national origin []
impair . . . [their] commercial soundness.” Section 25-1-501(5) observes that
companies that discriminate against businesses in Israel are “unduly risky contracting
partner[s] or vehicle[s] for investment” because they do not have access to innovation
coming from the country. These statements suggest a purely commercial purpose for
the statute, and if we consider legislative findings in our analysis, they weigh strongly
in favor of upholding the statute.
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Finally, the majority argues that the facts of the present case “do nothing to
detract from [its] reading of the term ‘other actions.’” Maj. Op. 15. Even if this were
true, the facts similarly do not support the majority’s reading. The majority argues
that the certification fails to notify the contractor of what conduct is prohibited. I
disagree. The certification references the statute, see Appendix A, and anyone
interested in finding out what conduct is barred can read the definition in Section 502.
Even if the majority were correct, vagueness arguments like this are only colorable
under the due process clauses, and Arkansas Times did not plead that claim.14
Even if I am wrong and the statute is susceptible to the majority’s interpreta-
tion, we have two options: (1) use the entire Act to raise constitutional questions
about “other actions”; or (2) read “other actions” consistent with ejusdem generis and
uphold the statute. In Arkansas, “[t]he first and most important rule of statutory
interpretation is that a statute is presumed constitutional and all doubts are resolved
in favor of constitutionality.” Booker v. State, 984 S.W.2d 16, 21 (Ark. 1998). To
honor this principle, “[i]f it is possible to construe a statute as constitutional, we must
do so.” Reinert v. State, 71 S.W.3d 52, 54 (Ark. 2002); see also McLane S., Inc. v.
Davis, 233 S.W.3d 674, 677 (Ark. 2006) (“All statutes are presumed constitutional,
and if it is possible to construe a statute so as to pass constitutional muster, this court
will do so.”). That is plainly possible here, and I would “construe [the] statute with
14
“[I]mprecise laws can be attacked on their face under two different doctrines.”
City of Chicago v. Morales, 527 U.S. 41, 52 (1999). While a statute may be
challenged on First Amendment grounds where “impermissible applications of the
law are substantial when ‘judged in relation to the statute’s plainly legitimate
sweep,’” id. (citation omitted), the majority does not levy that attack here. Instead,
its argument more closely resembles a Fifth or Fourteenth Amendment Due Process
claim that the statute is “impermissibly vague because it fails to establish standards
for the police and public that are sufficient to guard against the arbitrary deprivation
of liberty interests.” Id.-21-
a limiting interpretation to preserve [its] constitutionality.” Arkansas Hearing
Instrument Dispenser Bd. v. Vance, 197 S.W.3d 495, 499 (Ark. 2004).15
The court’s effort to stretch the term “other actions” is unavailing. The easiest
and most natural reading of the statute is constrained: “other actions” is similar to the
purely commercial terms preceding and modifying it. I would interpret it accordingly
and affirm the district court. I respectfully dissent.
______________________________
15
The majority’s initial finding of ambiguity alone may be fatal to its argument.
The majority suggests that constitutional avoidance is a canon of last resort, but that
is premised on federal principles of statutory interpretation, and “we are bound by a
state’s rules of statutory interpretation when reviewing a statute of that state.” Maj.
Op. 11 (citation omitted). Booker suggests Arkansas prioritizes constitutional
avoidance more than federal courts. 984 S.W.2d at 21. In any case, even if
constitutional avoidance is a canon of last resort—it applies here.
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APPENDIX A
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