Commercial Speech, Political Expression
Brosa v. Germany
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A US District Court in Arkansas upheld a law which prohibits “public entities from contracting with and investing in companies that boycott Israel.” The Arkansas Times newspaper challenged the constitutionality of Act 710, which required companies doing business with state entities to certify that they are not, and will not engage in boycott activities against Israel. The Times had refused to comply with the certification provision in an advertising contract on First Amendment grounds, arguing that the Act compelled speech pertaining to “political beliefs, association and expression,” and that it unjustifiably restricted protected speech and activities relating to boycotts. The Court determined that purchasing decisions are not a form of speech or expressive conduct because they do not communicate ideas, and therefore are not subject to First Amendment protections. The court explained that the landmark Supreme Court case NAACP v. Claiborne Hardware Co. Claiborne, which protected political boycotts, did not apply in the present case on the grounds that Act 710 only regulated commercial purchasing decisions and not political speech. According to the Court, the newspaper’s freedom of speech was not constrained under Act 710, as the Times was free to criticize Israel’s policies, engage in protests or organize meetings in support of a boycott, without state interference.
Act 710 (Act) is an Arkansas State statute which prohibits “public entities from contracting with and investing in companies that boycott Israel.” The Act states that boycotts “threaten the sovereignty and security” of US allies and defines a boycott 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 seeks to support trade and cooperation with Israel which Congress deems to “materially benefit” U.S. businesses and their competiveness. Companies who refuse or fail to provide the relevant certification may still contract with State Entities if they offer at least a twenty percent discount for the goods or services provided. The Act is similar to statutes already passed in numerous states and with a federal law which prohibits US citizens from “support[ing] any boycott fostered or imposed by a foreign country against a [friendly] country.” 50 U.S.C. § 4607(a)(1) (1979)
The Arkansas Times is a weekly newspaper which published over 83 paid advertisements on a contract basis for the University of Arkansas-Pulaski Technical College (Pulaski Tech) between 2016 and 2018. In October 2018, in advance of signing a new advertising contract with the Arkansas Times, Pulaski Tech asked the newspaper to provide certification, as required by Act 710, that it was not, and would not, engage in boycott activities against Israel. Although the paper had provided such certification numerous times in the past, Alan Leveritt, the Times’ publisher and chief executive officer refused on the grounds that it would violate the paper’s First Amendment rights. The editorial board had been critical of the Act in the past, but there was no indication that the Times had any intention to engage in any such boycott. The Times also refused to offer a twenty percent discount to avoid compliance with the Act. Hence, the parties ceased doing business together.
The Arkansas Times challenged the constitutionality of the Act claiming it violates the First and Fourteenth Amendments and the paper requested a preliminary injunction to prohibit the enforcement of the certification requirement pending judicial review.
The Times argued that the Act compelled speech pertaining to “political beliefs, association and expression,” and that it unjustifiably restricted protected speech and activities relating to boycotts. The defendant denied the claims and argued that the Times’ did not have standing to bring the case.
Chief U.S. District Judge Brian Miller delivered the opinion of the United States District Court dismissing the motion for a preliminary injunction brought by the Arkansas Times.
The Court first established that the Times had standing to bring the case since it had clearly suffered an injury due to the “concrete and quantifiable” financial loss from its refusal to comply with the certification provision.
However, the Court found that Times failed to prove that the boycotting of services was protected under the First Amendment, a finding which it acknowledged “diverged” from recent decisions handed down from federal district courts in Arizona and Kansas. (see Mikkel Jordahl v. Mark Brnovich 336 F. Supp. 3d at 1016) and Koontz v. Watson 283 F. Supp. 3d 1007, 1021–22 (D. Kan. 2018)).
The Court then turned to a discussion of the applicable First Amendment standards and why they did not apply in the present case. It established that the First Amendment “protects political association as well as political expression” (Buckley v. Valeo, 424 U.S. 1, 15 (1976)) and it prohibits the government from “from dictating what we see or read or speak or hear.” (Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002))
The Court clarified that certification requirements usually do not raise constitutional questions unless they seek to restrict protected speech, association or activities, or alternately, compel speech. In the case of Act 710, the certification provision only “concerns a contractor’s purchasing activities with respect to Israel,” and does not restrict criticism of Israel or even calls to boycott Israel. In light of the definition of a boycott under Act 710, the Court determined that purchasing decisions are “neither speech nor inherently expressive conduct.” As per the recent ruling in Jordhal, purchasing decisions, in and of themselves, do not communicate ideas. Such decisions only become expressive when they are “accompanied” by speech explaining the purpose of the boycott which would make the political motivations clear to the public. Relying on Supreme Court precedent in Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (“FAIR”) the Court further clarified that conduct cannot be “transformed” into “inherently expressive conduct” when it is accompanied by explanatory speech after the fact or even if it is part of a larger social movement. Therefore, Court concluded that the First Amendment did not protect the Times’ refusal to comply with the certification requirement.
The Court then rejected the Times’ argument that the Supreme Court precedent in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) protected “an unfettered” right to participate in politically motivated boycotts. Rather the court explained that in Claiborne, the boycott comprised a range of protected activities including meetings, speeches and non-violent picketing, as well as purchasing decisions. It noted that Claiborne did not find that “individual purchasing decisions were protected by the First Amendment.” Under Act 710, the Times is free to criticize Israel’s policies, engage in protests or organize meetings in support of a boycott, without state interference.
The facts under Claiborne were also significantly different from the present case. Claiborne concerned a “primary boycott of white owned businesses…by civil rights activists in order to protest racial discrimination.” (pp. 12) In effect, the boycott was being conducted by persons “whose constitutional rights were being infringed upon and against those who were infringing upon those rights. (pp. 14) Whereas, Act 710 concerns political boycotts against a foreign government and about issues of no “domestic legal interest.” The Court again relied on Supreme Court precedent, citing Int’l Longshoremen’s Ass’n v. Allied Int’l, Inc., 456 U.S. 212, 226 (1982) to underscore that there is no “unqualified right to boycott,” or “First Amendment interest in boycotting at all,” and that Claiborne must be seen as establishing a “narrow exception to this rule based on particular facts that are not present here.” (pp. 15)
Therefore, the Court denied the Times’ request for a preliminary injunction and dismissed the Times’ claim finding “that a boycott of Israel, as defined by Act 710, is not speech, inherently expressive activity, or subject to independent constitutional protection under Claiborne.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision restricts expression by not recognizing that commercial purchasing decisions made in support of political boycotts are a form of protected expressive conduct. Under international human rights law, political speech and expression on issues of public significance receive the highest level of protection.
This case reflects issues of major public debate in the U.S. as they relate to the Palestinian-led Boycott, Divestment, Sanctions (BDS) movement which protests Israel’s policies towards the Palestinians through economic sanctions. As of December 2018, 27 states had implemented anti-BDS laws to undermine the BDS movement. The ACLU has been actively challenging these laws on First Amendment grounds in numerous states and has successfully blocked similar anti-boycott state laws in Kansas and Arizona.
U.S. Federal law on boycotts against foreign countries (secondary boycotts) is established and the Export Administration Act of 1979 and Ribicoff Amendment to the Tax Reform Act of 1976 both prohibit US companies from supporting a foreign country’s boycott of another country unless the US government also supports the boycott.
Further, opponents of BDS laws argue that established caselaw on civil rights boycotts do not apply to BDS boycotts, and that BDS boycotts are unconstitutional forms of discrimination and anti-semitism.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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