Ark. Times LP v. Waldrip

37 F.4th 1386

ARKANSAS TIMES LP, Plaintiff - Appellant

v.Mark WALDRIP, in his official capacity AS TRUSTEE OF the UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES; John Goodson, in his official capacity as Trustee of the University of Arkansas Board of Trustees; Kelly Eichler, in her official capacity as Trustee of the University of Arkansas Board of Trustees; David Pryor, in his official capacity as Trustee of the University of Arkansas Board of Trustees; Stephen Broughton, in his official capacity as Trustee of the University of Arkansas Board of Trustees; C C Gibson, in his official capacity as Trustee of the University of Arkansas Board of Trustees; Tommy Boyer, in his official capacity as Trustee of the University of Arkansas Board of Trustees; Steve Cox, in his official capacity as Trustee of the University of Arkansas Board of Trustees, Defendants - Appellees

First Amendment Scholars; Council on American Islamic Relations; American Friends Service Committee ; Israel Palestine Mission Network of the Presbyterian Church; A Jewish Voice for Peace Inc.; U.S. Campaign for Palestinian Rights; U.S. Palestinian Community Network; U.S. Campaign for the Academic and Cultural Boycott of Israel; Friends of Sabeel North America ; Institute for Free Speech; Foundation for Individual Rights in Education; Palestine Legal; The Center for Constitutional Rights; Bahia Amawi; National Lawyers Guild; Project South; J Street ; T'ruah: The Rabbinic Call for Human Rights; 15 Media Organizations; Reporters Committee for Freedom of the Press; Lawrence Glickman, Amici on Behalf of Appellant(s)

Michael C. Dorf ; Eugene Volokh; Zachor Legal Institute; Andrew Koppelman; Shurat Hadin-Israel Law Center; American Jewish Committee; Christians United for Israel; Israeli-American Coalition for Action; The Israel Project; Agudath Israel of America; The Union of Orthodox Jewish Congregations of America; Standwithus; State of Arizona; State of Florida ; State of Georgia; State of Indiana; State of Missouri; State of Ohio; State of Texas; State of Utah; State of West Virginia; The Louis D. Brandeis Center Inc.; The American Center of Law and Justice ; State of Idaho; State of Kansas; State of Kentucky; State of Montana; State of Oklahoma; State of South Carolina; State of South Dakota; Eleven Constitutional and Business Law Professors, Amici on Behalf of Appellee(s)

No. 19-1378

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2021

Filed: June 22, 2022

Bettina E. Brownstein, Little Rock, AR, John Lindsay Burnett, Lavey & Burnett, Little Rock, AR, Vera Eidelman, Brian Matthew Hauss, Benjamin Wizner, American Civil Liberties Union Foundation, New York, NY, for Plaintiff - Appellant.

Nicholas J. Bronni, Michael A. Cantrell, Dylan L. Jacobs, Assistants Solicitor General, KaTina Hodge-Guest, Assistant Attorney General, Attorney General's Office, Little Rock, AR, for Defendants - Appellees Mark Waldrip, John Goodson, Kelly Eichler, David Pryor, Stephen Broughton, C C Gibson, and Steve Cox.

Nicholas J. Bronni, Michael A. Cantrell, Dylan L. Jacobs, Assistants Solicitor General, KaTina Hodge-Guest, Assistant Attorney General, Attorney General's Office, Little Rock, AR, Vincent M. Wagner, Alliance Defending Freedom, Lansdowne, VA, for Defendant - Appellee Tommy Boyer.

Alexander Abdo, Ramya Krishnan, Knight First Amendment Institute, New York, NY, for Amicus on Behalf of Appellant First Amendment Scholars.

Lena F. Masri, CAIR Legal Defense Fund, Washington, DC, for Amici on Behalf of Appellants Council on American Islamic Relations and Bahia Amawi.

Jethro Eisenstein, Profeta & Eisenstein, New York, NY, for Amici on Behalf of Appellants American Friends Service Committee, Israel Palestine Mission Network of the Presbyterian Church, A Jewish Voice for Peace Inc., U.S. Campaign for Palestinian Rights, U.S. Palestinian Community Network, U.S. Campaign for the Academic and Cultural Boycott of Israel, and Friends of Sabeel North America.

Allen J. Dickerson, Institute for Free Speech, Washington, DC, Parker Douglas, Douglas Law, PLLC, Holland, MI, for Amicus on Behalf of Appellant Institute for Free Speech.

Allen J. Dickerson, Institute for Free Speech, Washington, DC, for Amicus on Behalf of Appellant Foundation for Individual Rights in Education.

Radhika Sainath, Palestine Legal, New York, NY, Matthew Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Amicus on Behalf of Appellant Palestine Legal.

Maria LaHood, Center for Constitutional Rights, New York, NY, Matthew Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Amicus on Behalf of Appellant The Center for Constitutional Rights.

Jordan S. Kushner, Minneapolis, MN, for Amici on Behalf of Appellants National Lawyers Guild and Project South.

Mary McCord, Institute for Constitutional Advocacy & Protection, Washington, DC, for Amici on Behalf of Appellants J Street and T'ruah: The Rabbinic Call for Human Rights.

Bruce David Brown, Gabriel Rottman, Katie Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Amici on Behalf of Appellants 15 Media Organizations and Reporters Committee for Freedom of the Press.

Caesar D. Kalinowski, Ambika Kumar, Davis & Wright, Seattle, WA, for Amicus on Behalf of Appellant Lawrence Glickman.

Eugene Volokh, UCLA School of Law, The Williams Institute, Los Angeles, CA, for Amici on Behalf of Appellees Michael C. Dorf and Eugene Volokh.

Marc Arthur Greendorfer, Zachor Legal Institute, Bozeman, MT, for Amici on Behalf of Appellees Zachor Legal Institute and Andrew Koppelman.

Robert J. Tolchin, Berkman Law Office, Brooklyn, NY, for Amicus on Behalf of Appellee Shurat Hadin-Israel Law Center.

Gregory Edward Ostfeld, Greenberg & Traurig, Chicago, IL, for Amicus on Behalf of Appellee American Jewish Committee.

Paul D. Clement, Erin Murphy, Kirkland & Ellis, Washington, DC, for Amici on Behalf of Appellees Christians United for Israel and The Israel Project.

Paul D. Clement, Erin Murphy, Kirkland & Ellis, Washington, DC, Nathan Lewin, Lewin & Lewin, Washington, DC, for Amicus on Behalf of Appellee Israeli-American Coalition for Action.

Michal Baum, Gibson & Dunn, New York, NY, Stephen Blacklocks, Hunton & Andrews, New York, NY, for Amici on Behalf of Appellees Agudath Israel of America and The Union of Orthodox Jewish Congregations of America.

Avishai Don, Arnold & Porter, Washington, DC, Jonathan M. Rotter, Glancy & Prongay, Los Angeles, CA, Aaron Stiefel, Arnold & Porter, New York, NY, for Amicus on Behalf of Appellee Standwithus.

Drew C. Ensign, Senior Litigation Counsel, Attorney General's Office, Phoenix, AZ, for Amici on Behalf of Appellees State of Arizona, State of Florida, State of Georgia, State of Indiana, State of Missouri, State of Ohio, State of Texas, State of Utah, State of West Virginia, State of Idaho, State of Montana, State of Oklahoma, State of South Carolina, and State of South Dakota.

Nathan Lewin, Lewin & Lewin, Washington, DC, Akiva Shapiro, Gibson & Dunn, New York, NY, for Amicus on Behalf of Appellee The Louis D. Brandeis Center Inc.

Edward Lawrence White, American Center for Law and Justice, Ann Arbor, MI, for Amicus on Behalf of Appellee The American Center of Law and Justice.

Jerome M. Marcus, Marcus & Auerbach, Spring House, PA, for Amicus on Behalf of Appellee Eleven Constitutional and Business Law Professors.

Before SMITH, Chief Judge, LOKEN, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.

KOBES, Circuit Judge.

In 2017, Arkansas passed a law requiring public contracts to include a certification that the contractor will not "boycott" Israel. Arkansas Times sued, arguing that the law violates the First Amendment. The district court¹ dismissed the action. Sitting en banc, we conclude that the certification requirement does not violate the First Amendment and affirm.

I.

Arkansas Act 710 prohibits state entities from contracting with private companies unless the contract includes a certification that the company "is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel." Ark. Code Ann. § 25-1-503(a)(1). The statute defines "boycott of Israel" 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." Ark. Code Ann. § 25-1-502(1)(A)(i). The Act exempts contracts if a company provides goods or services for at least 20% less than the lowest certifying business, or if the contract has a total potential value of less than $1,000. Ark. Code. Ann. § 25-1-503(b).

Arkansas Times, a newspaper, contracts with University of Arkansas-Pulaski Technical College. It sued for a preliminary injunction, arguing that the certification violates the First Amendment in two ways: (1) by placing an unconstitutional condition on the award of government contracts; and (2) by compelling speech. The district court dismissed the suit, holding that economic boycotts do not implicate the First Amendment because they are neither speech nor expressive conduct.

A divided panel of this court reversed, holding that the certification requirement was unconstitutional. The panel interpreted the language prohibiting "other actions intended to limit commercial relations with Israel" to include protected speech. We granted rehearing en banc.

II.

We review the grant of a motion to dismiss de novo and accept the complaint's factual allegations as true, granting all reasonable inferences to the non-moving party. Park Irmat Drug Corp. v. Express Scripts Holding Co. , 911 F.3d 505, 512 (8th Cir. 2018). We review the denial of a preliminary injunction for abuse of discretion. Phyllis Schlafly Revocable Tr. v. Cori , 924 F.3d 1004, 1009 (8th Cir. 2019).

A.

The First Amendment prohibits the government from "abridging the freedom of speech." U.S. Const. amend. I ; Thornhill v. Alabama , 310...