Ark. Times LP v. Waldrip

• Decision Date: 23 January 2019
• Docket Number: CASE NO. 4:18-CV-00914 BSM
• Citation: 362 F.Supp.3d 617
• Parties: ARKANSAS TIMES LP, Plaintiff v. Mark WALDRIP, et al., Defendants
• Court: U.S. District Court — Eastern District of Arkansas

362 F.Supp.3d 617

ARKANSAS TIMES LP, Plaintiff

v.Mark WALDRIP, et al., Defendants

CASE NO. 4:18-CV-00914 BSM

United States District Court, E.D. Arkansas, Western Division.

Signed January 23, 2019

Bettina E. Brownstein, Betinna E. Brownstein Law Firm, John L. Burnett, Lavey & Burnett, Little Rock, AR, Brian Hauss, Pro Hac Vice, Vera Eidelman, Pro Hac Vice, ACLU Foundation, New York, NY, for Plaintiff

Dylan L. Jacobs, Michael Cantrell, Nicholas Jacob Bronni, Ka Tina Rena Guest, Arkansas Attorney General's Office, Little Rock, AR, for Defendants

ORDER

Brian S. Miller, UNITED STATES DISTRICT JUDGE

I routinely instruct jurors to follow my instructions on the law, even if they thought the law was different or think it should be different. This case presents an occasion in which I must follow the same principle, which is that I have a duty to follow the law even though, before researching the issue, I thought the law required a different outcome than the one ultimately reached.

Plaintiff Arkansas Times LP's motion for a preliminary injunction [Doc. No. 2] is denied, and defendants' motion to dismiss [Doc. No. 15] is granted. Defendants' motion for leave to file a reply brief [Doc. No. 22] is denied as moot.

I. BACKGROUND

The Arkansas Times challenges the constitutionality of Act 710, a state statute requiring that companies doing business with state entities certify that they are not boycotting Israel. The relevant facts are as follows:

Act 710 prohibits state entities from entering into contracts with companies for goods or services unless those companies certify in writing that they are not currently engaged in, nor will they engage in for the duration of their contract, a "boycott of Israel." Ark. Code Ann. § 25-1-503(a). It defines a "boycott of Israel" to mean:

[E]ngaging 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.

Id. § 25-1-502(1)(A)(i). If a company fails to provide this written certification, it may still contract with a state entity—but it must first offer to provide its goods or services for at least a twenty percent discount. Id. § 25-1-503(b)(1). The law does not apply to contracts with a potential value of less than $ 1,000. Id. § 25-1-503(b)(2).

This law is not the only one of its kind. Dozens of states have passed similar statutes. See Br. Opp. Pl. Mot. Prelim. Inj. at 2 n.1, Doc. No. 14. There is a somewhat similar federal law authorizing the "President [to] issue regulations prohibiting any United States person ... from ... support[ing] any boycott fostered or imposed by a foreign country against a [friendly] country." 50 U.S.C. § 4607(a)(1) (1979) ; see also Anti-Boycott Act of 2018, Pub. L. No. 115-232, §§ 1771–74.

The Arkansas Times is a weekly newspaper in Arkansas. Its publisher and chief executive officer is Alan Leveritt. For many years, the Times has contracted with Pulaski Technical College, now the University of Arkansas–Pulaski Technical College ("Pulaski Tech"), to publish advertisements for the college. In 2016, the Times entered into twenty-two advertising contracts with Pulaski Tech for amounts over $ 1,000; in 2017, it entered into thirty-six such contracts. In 2018, the Times entered into twenty-five such contracts before October.

In October 2018, the Arkansas Times and Pulaski Tech were preparing to enter into a new advertising contract. Pulaski Tech, consistent with Act 710's certification requirements, informed Leveritt that he would have to certify that the Times is not currently engaging in, nor would for the duration of the contract engage in, a boycott of Israel. Leveritt declined to do so, citing the Times's First Amendment rights. Specifically, the Times takes the position that it should not have to choose between doing business with the state and its right to freedom of expression. Leveritt also asserts that while he was not afforded an opportunity to decline certification and to offer a twenty percent reduction in price, such a discount is unacceptable.

The Times has previously complied with the law's certification provision on dozens of occasions, as it entered into many advertising contracts with Pulaski Tech after Act 710 went into effect. Further, while the paper's editorial board has been critical of Act 710, it appears that the Times has never engaged in, nor ever written in support of, a boycott of Israel. See Lindsey Millar, Arkansas Times challenges law that requires state contractors to pledge not to boycott Israel in federal court , Arkansas Times: Arkansas Blog (Dec. 11, 2018) ("The Times has never participated in a boycott of Israel or editorialized in support of one."). Nothing indicates the Times will engage in such a boycott.

Because of the Times's refusal to certify, the parties did not execute a contract in October 2018, and there are no existing contracts between them. It is also very unlikely that there will be any future advertising contracts between the Times and Pulaski Tech because of this certification requirement.

The Arkansas Times brings this lawsuit asserting that Act 710 violates the First and Fourteenth Amendments. It seeks a preliminary injunction prohibiting the defendants from enforcing the law's certification provision while this suit is pending. Defendants oppose the motion and have moved to dismiss.

II. LEGAL STANDARD

A preliminary injunction is an extraordinary remedy. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Whether to grant such relief is within the sound discretion of the district court. See Lankford v. Sherman , 451 F.3d 496, 503 (8th Cir. 2006). A party seeking a preliminary injunction must prove that: (1) it will suffer irreparable harm if the injunction is denied; (2) the harm to the movant, if the injunction is denied, outweighs the harm to the non-movant if the injunction is granted; (3) there is a likelihood of success on the merits; and (4) an injunction is in the public's interest. Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981) ; Gelco Corp. v. Coniston Partners , 811 F.2d 414, 418 (8th Cir. 1987).

Generally, a "fair chance" of prevailing on the merits is required to grant a preliminary injunction. Planned Parenthood of Minnesota, N. Dakota, S. Dakota v. Rounds , 530 F.3d 724, 730–31 (8th Cir. 2008). "Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, however, the moving party must make a more rigorous showing that it is likely to prevail on the merits." Planned Parenthood of Arkansas & E. Oklahoma v. Jegley , 864 F.3d 953, 957–58 (8th Cir. 2017) (quotations omitted). This heightened standard "reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly." Rounds , 530 F.3d at 732 (quoting Able v. United States , 44 F.3d 128, 131 (2d Cir. 1995) ).

III. DISCUSSION

The Arkansas Times presents two arguments challenging the constitutionality of Act 710's certification requirement. First, it asserts that the law impermissibly compels speech regarding contractors' political beliefs, association, and expression. Second, it asserts that the law impermissibly restricts state contractors from engaging in protected First Amendment activities, including boycott participation and boycott-related speech, without a legitimate justification. Defendants dispute both of these arguments and assert that the Times lacks standing to bring its boycott-restriction claim.

While the Times has standing to bring both of its claims, a preliminary injunction is denied because the Arkansas Times has failed to show that a boycott of Israel, as defined by Act 710, is protected by the First Amendment.

A. Standing

The Arkansas Times has standing to bring its boycott-restriction claim because it suffered an injury in fact when it lost a government contract after refusing to comply with Act 710's certification provision. It does not have to allege that it intends to boycott Israel or that it would have boycotted Israel but for Act 710.

Federal courts may hear only "cases" and "controversies." U.S. Const. art. III, § 2, cl.1. "[T]here is no case or controversy unless the party initiating the [lawsuit] has standing to sue." Owner-Operator Indep. Drivers Ass'n, Inc. v. United States Dep't of Transp. , 831 F.3d 961, 966 (8th Cir. 2016). To establish that it has standing to bring this lawsuit, the Arkansas Times must show that it suffered an "injury in fact." See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Injury-in-fact means an actual or imminent invasion of a concrete and particularized legally protected interest." Kinder v. Geithner , 695 F.3d 772, 776 (8th Cir. 2012).

There are two common ways of demonstrating an injury in fact in First Amendment cases. See Missourians for Fiscal Accountability v. Klahr , 830 F.3d 789, 794 (8th Cir. 2016). First, a plaintiff may allege "an intention to engage in a course of conduct ... proscribed by a statute" such that the plaintiff risks prosecution or some other penalty, including the loss of a government contract. Id. (internal quotation marks omitted) (quoting Babbitt v. Farm Workers , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ). Second, it may allege self-censorship. Id. ; see also 281 Care Comm. v. Arneson , 638 F.3d 621, 627 (8th Cir. 2011) (noting that to show self-censorship, a plaintiff "needs ... to establish that he would like to engage in arguably protected speech, but that he is chilled from doing so by the existence of the statute.").

Critically, these two methods are used in cases in which plaintiffs are challenging the constitutionality of a law before facing pro...