The Arkansas paper behind a failed lawsuit against the state’s anti-BDS law is not responding well to defeat.
Last year, the 8th Circuit Court of Appeals upheld the law being challenged by the Arkansas Times. On February 21, 2023, the Supreme Court rejected a petition to hear the case, leaving Arkansas’s anti-BDS law intact.
Having lost in the courts, the paper has now resorted to distorting the facts.
In a February 21 post, titled “U.S. Supreme Court won’t hear challenge to loyalty-to-Israel requirement for Arkansas contractors,” the Arkansas Times’s publisher, Alan Leveritt, was quoted as stating:
Permitting state governments to withhold state contracts from citizens who voice opinions contrary to those held by a majority of their state legislators is abhorrent and a violation of the Bill of Rights.
It’s an entirely false characterization of the law as now interpreted by the courts.
For context, the case had to do with Act 710, which prohibits Arkansas state entities from contracting with companies that discriminate against the State of Israel by engaging in a boycott of the Jewish state.
While opponents of the law claimed it infringed on First Amendment rights, the appellate court disagreed, finding that the law affected “purely commercial, non-expressive conduct.”
Directly contradicting Leveritt’s description of the issue, the 8th Circuit Court explained in its ruling:
It does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.
In other words, an Arkansas citizen is free to “voice opinions contrary to those held by a majority of their state legislators” as much as they’d like while contracting with Arkansas state entities, and the law will have zero effect on them. The Arkansas law only kicks in if the citizen refuses to certify that they will not engage in discriminatory commercial conduct. As explained in the Wall Street Journal, “while a company’s explanation of its boycott may be speech, the boycott itself is conduct.” Expressive conduct beyond the commercial conduct remains protected.
While it is understandable that the paper is disappointed in how its court case turned out, as an outlet purporting to be engaged in “feisty journalism” and “the fight for truth,” the Arkansas Times owes its readers a minimum of factual accuracy.
Instead, the Arkansas Times is losing not just on the law, but also on the facts.