Appeals Court’s Decision Upholding Anti-Boycott Law Drastically Undermines Free Expression
U.S. Court of Appeals for the Eighth Circuit Ruling Disregards Well-Established Legal Precedent
FOR IMMEDIATE RELEASE
(NEW YORK)— In a statement today, PEN America said the U.S. Court of Appeals for the Eighth Circuit has sharply undermined Americans’ constitutional rights to free expression in its decision concluding that an Arkansas law intended to restrict boycotts of Israel does not violate the First Amendment.
An Arkansas law passed in 2017 limits state business with government contractors who refuse to sign a pledge not to boycott Israel. The ACLU challenged the measure on behalf of the Arkansas Times, whose publisher has said that such laws would force the newspaper to take political positions in return for advertising.
In ruling for the majority, Judge Jonathan Kobes of the Eighth Circuit asserted that the Arkansas law did not violate the First Amendment because it took aim at “purely commercial, non-expressive conduct.”
“The Eighth Circuit ruling misreads well-established legal precedent and drastically undermines constitutionally protected freedoms,” said Nadine Farid Johnson, Washington director of PEN America. “The right to participate in boycotts, regardless of their practical merits, has long been affirmed by our highest court as a matter of free speech. This includes boycotts both political and economic. Transforming government contracts into a mechanism to suppress the ability to engage in this kind of political protest is at odds with our Constitution. This decision is sure to create a chilling effect on the activities of businesses wishing to contract with the state government.”
“Every piece of legislation aimed at curbing political expression paves the way for more severe restrictions on free speech writ large,” Johnson said. “As advocates prepare to appeal to the Supreme Court, we hope the justices will affirm their longstanding commitment to free speech and uphold every Americans’ right to engage in boycotts as a form of protest.”