US Supreme Court Upholds Ruling in Free Speech Arkansas Case

On February 21, 2023, the U.S. Supreme Court upheld an Arkansas law prohibiting contractors from boycotting Israel, rejecting a challenge that claimed the law violates free speech rights.

The law, passed in 2017, requires any public contract to certify that a contractor is not "boycotting" Israel, which is defined as "actions that are intended to limit commercial relations" with Israel or any "Israeli-controlled territories." Most states have similar laws, which were formed as a reaction to the Boycott, Divestment, and Sanction (BDS) movement.

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In 2018, the Arkansas Times sued the state of Arkansas after learning of this law because they claimed that it required taking a political side in this debate. A full slate of ten 8th U.S. Circuit Court of Appeals judges based out of St. Louis dismissed the case in 2022, as they did not believe that the law violated the First Amendment. However, the ruling was then challenged by the American Civil Liberties Union (ACLU) and other groups who argued that the law violates the First Amendment. The ACLU cited the Supreme Court's 1982 ruling of NAACP v. Claiborne Hardware Co., in which the court ruled that a non-violent boycott of white-owned businesses in Mississippi was constitutionally protected.

The court's decision was a 6-3 vote in favor of upholding the law. Justice Neil Gorsuch, writing for the majority, stated that the law is a valid exercise of the state's power to regulate its contracting processes rather than infringing on free speech. The court also noted that the law does not prohibit individuals or groups from expressing their views on Israel or engaging in boycotts.

The decision was met with criticism from civil liberties groups, who argue that the law sets a dangerous precedent for government intrusion on free speech. In a statement, the ACLU replied that the ruling "undermines the First Amendment and imperils the free speech rights of all Americans." However, supporters of the law, including pro-Israel groups and Republican lawmakers, hailed the decision as a victory for combating discrimination against Israel.