BY HANK REICHMAN

Yesterday the company that owns and publishes the Arkansas Times filed suit in federal court challenging the constitutionality of a state law requiring government contractors to pledge not to boycott Israel or reduce their fees by at least 20 percent.  The Times initiated the suit after the University of Arkansas-Pulaski Technical College, which has advertised regularly in the paper, informed the Times that it had to sign a certification that it would not engage in a boycott of Israel if it wanted to continue to receive advertising contracts from the University of Arkansas Board of Trustees.  Times publisher Alan Leveritt declined, and the university has not advertised in the paper since.  The Times has never participated in a boycott of Israel or editorialized in support of one, the paper says.

The university said it was required to seek the certification by Act 710 of 2017, sponsored by State Rep. Jim Dotson (R-Bentonville) and Sen. Bart Hester (R-Cave Springs), which took effect July 31, 2017.  It requires that all contracts valued at $1,000 or more include language that commits the contractor to oppose such activity or accept the reduced fee.  The law defines “boycott of Israel” as “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.”  The act also requires public entities to identify and create a list of all companies that boycott Israel for distribution to their retirement systems, and requires their investment managers to demand certification from those companies that they cease their boycott.  The managers must divest from those companies who refuse to withdraw their boycotts.

According to the National Coalition Against Censorship, at least seventeen states have passed legislation imposing punitive measures against supporters of the BDS movement.  Earlier this year federal judges in Arizona and Kansas issued injunctions against the enforcement of laws similar to that in Arkansas.  The Kansas judge later dismissed the case after the legislature altered its law, although the state was still required to pay the plaintiff teacher’s legal fees.  At the federal level, versions of the Israel Anti-Boycott Act have been introduced in the U.S. House and Senate, but neither has come up for a vote.  Sen. John Boozman of Arkansas is a co-sponsor of the Senate bill, along with a number of Democrats, including Sen. Charles Schumer of New York, the minority leader.

In August, AAUP’s Committee A on Academic Freedom and Tenure issued a statement reporting that in states that have passed such laws “some public universities . . . have begun to require that external speakers invited to campus and others who contract with these universities, such as external reviewers of tenure and promotion materials, sign a statement pledging that they do not now, nor will they in the future, endorse BDS.”  While reaffirming the AAUP’s opposition to academic boycotts, including and academic boycott of Israel, the Committee A statement warned that efforts by American colleges and universities to compel BDS supporters to disavow their views “conjure the specter of loyalty and disclaimer oaths, mainstays of McCarthyism.”  The statement concluded: “At a time when there is widespread interest in making sure that speakers on all points of the political spectrum are able to make themselves heard on American campuses, the contradiction in seeking to ban advocates of this particular position is obvious and unacceptable.  We therefore call on all institutions of higher education in the United States to challenge the required renunciation of BDS and uphold freedom of speech and belief for all members of the academic community.”

“Campuses in the University of Arkansas system have been advertising with us for years, so we were shocked and more than a little troubled when they sent over what looked like a loyalty oath as a condition of payment,” Times publisher Leveritt said. “As journalists, we are fervent believers that the First Amendment’s speech protections are essential to a free and just society and would never sign a contract that’s conditioned on the unconstitutional suppression of free speech. Regardless of what people may think about this particular boycott, it is not the government’s place to decide what causes Arkansans can or cannot support.”

“This law imposes an unconstitutional tax on free speech,” said Rita Sklar, executive director of the ACLU of Arkansas, which filed the suit on behalf of the Times.  “The state has no business telling Arkansans what causes they can or can’t support — or charging them a fee just because they hold a particular viewpoint. Our client is simply asking the courts to uphold a fundamental First Amendment principle that the government cannot force people to subscribe to a specific political viewpoint.”

“There is no plausible justification for the certification requirement, except the desire to identify, punish, and chill disfavored political beliefs and associations,” the suit argues.  “That justification cannot survive First Amendment scrutiny.”  Declaring that the law “imposes an ideological litmus test,” the complaint notes that “participation in a boycott .  . . is protected association under the First Amendment.”

“Whether or not someone chooses to boycott Israel, or persons or entities doing business in Israel or Israeli-occupied territories, is politically motivate speech and expressive activity related to a matter of public concern and therefore protected by the First Amendment,” the complaint declares.  The Times and the ACLU of Arkansas moved for injunctive relief that would bar the university from refusing advertising in conformity with the law.  In a brief supporting that request they argue that the law should be declared unconstitutional.

The AAUP opposes all academic boycotts, including the academic boycott of Israel, but takes no position on either the Israeli-Palestinian conflict or on economic boycotts or proposals for divestment.  At the same time, the AAUP upholds the right of faculty members to advocate such a boycott.  As I wrote in August, “The right of individuals to engage in or advocate boycotts is well established in the United States; any attempt to limit that right is clearly unconstitutional under the 1982 U.S. Supreme Court decision in NAACP v. Claiborne Hardware Co.  No one is obligated to support a boycott, but opposition to a boycott does not justify silencing its advocates.  Just as the AAUP defends the right of faculty members to make extramural comments that most of us may find repulsive, so too do we defend the right of faculty members to support policies we may oppose, including policies that may threaten academic freedom.”