Phoenix, Arizona - Attorney General Mark Brnovich is leading a coalition of 16 states defending an Arkansas law that prevents state subsidization of boycotts of Israel. The law generally requires state-funded contractors to certify that they are not engaged in such boycotts. Arizona passed a similar law in 2016 to prevent national origin discrimination.
“The law does not impact free speech,” said Attorney General Mark Brnovich. “It affirms that companies, who choose to compete for taxpayer-funded public contracts, should not be engaged in widespread discrimination of others based solely on nationality.”
The coalition is urging the 8th Circuit Court of Appeals to rehear the case en banc after a misguided 2-1 ruling earlier this year.
In 2017, the Arkansas Legislature passed the Arkansas 710 Act (Act) to prevent public entities from awarding contracts to companies who engage in boycotts against Israel. The American Civil Liberties Union (ACLU), on behalf of the Arkansas Times, filed a lawsuit alleging the Act violated the First Amendment.
The coalition argues the Act does not violate the First Amendment. The Act regulates only economic conduct, not speech, and only affects what companies can receive taxpayer funds. In addition, the Act is plainly an anti-discrimination measure, which has been widely upheld against First Amendment challenges even where (unlike here) they burden expression/association. The Act does not prohibit people from saying what they want about Israel -- it only regulates the commercial actions of companies that choose to contract with the government and therefore receive taxpayer money.
Additionally, the coalition argues the Act prohibits invidious discrimination based solely on nationality or national origin. By definition, targeting a particular group for the intentional infliction of economic harm is discrimination.
The decision threatens similar laws in many other states. Nearly two-thirds of all states—31 in all—have laws like Arkansas. Notably, the same counsel has brought equivalent suits in Arizona, Kansas, and Texas. There is no reason to doubt that—uncorrected—the panel majority’s decision will be used to bring lawsuits against Arkansas’ 30 similarly-situated sister states.
The brief is led by Arizona Attorney General Brnovich. Joining him are Attorneys General from Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Montana, Missouri, Ohio, Oklahoma, Texas, South Carolina, South Dakota, Utah, and West Virginia.