An unconstitutional Arkansas law requires companies contracting with the state to certify that they will not boycott Israel.
Last year, letters from the state of Arkansas began drifting across my desk, demanding that our weekly newspaper, the Arkansas Times, either sign a pledge not to boycott Israel or forfeit all state advertising.
The letters were the result of an obscure, cookie-cutter law passed in 2017 by our Republican-controlled legislature. Specifically, it requires any company entering into a contract with a public entity to certify that it “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.”
Initially, we and our longtime state agency clients simply ignored it and went about our business of producing a newspaper. But when the University of Arkansas System began strictly enforcing the law last fall, it told us that we had to sign the anti-boycott pledge in order to continue running advertisements for the University of Arkansas-Pulaski Technical College.
At that point, we had a decision to make. Times are hard in the publishing industry, and we really needed the business. But at what price? It had never occurred to us to boycott anyone, but the idea that the state would force a publishing company to take a political position in return for business was offensive.
We then learned the law offered to let us continue to do business without signing the pledge, so long as we accepted a 20 percent cut in our ad rates. I said, “Well, to hell with them.” We were not going to pay a 20 percent tax for the right to hold beliefs independent of the Arkansas Legislature, at least not without a fight.
So, with the help of the American Civil Liberties Union, we sued the state to have this law overturned on free speech grounds. Our hearing to get an injunction against enforcement of the law is on Friday, Jan. 4. In other states where similar laws have been passed, citizens have sued because they support the boycott against Israel based on how that country is treating the Palestinians. We’re focused on Arkansas at the Arkansas Times and have never editorially advocated for a boycott of Israel. But as journalists, citizens, and taxpayers, we dispute the right of the state to impose any ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit.
We’ve heard through the grapevine that the law has created some absurd confrontations for the state. For example, many state colleges and universities bring in touring musicians for concerts. Imagine demanding that a Rock & Roll Hall of Fame musician sign what amounts to a loyalty oath to the state of Israel before he can be paid. An architect from Fort Smith, Arkansas, who was bidding on a state job said it well when he wrote his local newspaper that he has “no political axe to grind with either Israel or the Palestinians, but this is a rather remarkable thing to require of a citizen to get a job.”
Supporters of the law have argued that it is regulating action, not free speech. But political boycotts have long been recognized as free speech, going back to the civil rights boycotts of white businesses in Mississippi during the 1960s. If political boycotts are not protected, then neither is political speech.
What other pledges might state legislatures require if this law is upheld? And what might the federal government, which has considered passing a criminal anti-boycott bill, come up with? Could legislatures in blue states penalize citizens or businesses for flying the Confederate flag? Might red state legislatures prohibit the state from doing business within anyone who boycotts Trump family businesses? Imagine similar scenarios where boycotts of tobacco companies or political parties are at issue.
This law is a rabbit hole our country does not need to go down. Since when do American citizens have to pledge to act in the interest of a foreign power in order to do business with their own government? Since when does the state of Arkansas punish its own taxpayers in an effort to assist a foreign government with its domestic policy?
As an American, I say it is none of their damn business what political beliefs we hold. We’ll see them in court.
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