Ark. Times LP v. Waldrip

• Decision Date: 12 February 2021
• Docket Number: No. 19-1378,19-1378
• Parties: 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, Amici on Behalf of Appellee(s)
• Court: U.S. Court of Appeals — Eighth Circuit

988 F.3d 453

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, Amici on Behalf of Appellee(s)

No. 19-1378

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2020

Filed: February 12, 2021

Counsel who presented argument on behalf of the appellant and appeared on the brief was Brian Matthew Hauss, of New York, NY. The following attorneys also appeared on the appellant brief; John Lindsay Burnett, of Little Rock, AR., Bettina E. Brownstein, of Little Rock, AR., Vera Eidelman, of New York, NY., and Benjamin Wizner, of New York, NY.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Nicholas Jacob Bronni, AAG, of Little Rock, AR. The following attorneys also appeared on the appellee brief; Dylan L. Jacobs, AAG, of Little Rock, AR, and Vincent M. Wagner, of Little Rock, AR.

The following attorneys appeared on the amicus brief of First Amendment Scholars in support of the appellant: Ramya Krishnan, of New York, NY., Daniela Nogueira, of New York, NY., and Alexander Abdo, of New York, NY.

The following attorneys appeared on the amicus brief of the Council on American-Islamic Relations and Bahia Amawi in support of the appellant; Lena F. Masri, of Washington, DC., Gadeir I. Abbas, of Washington, DC., Carolyn M. Homer, of Washington, DC., Justin Sadowsky, of Washington, DC.

The following attorney appeared on the amicus brief of American Friends Service Committee, Israel Palestine Mission Network of the Presbyterian Church (USA), A Jewish Voice for Peace, Inc., US Campaign for Palestinian Rights, US Palestinian Community Network, US Campaign for the Academic and Cultural Boycott of Israel and Friends of Sabeel North America, in support of the appellant; Jethro Eisenstein, of New York, NY.

The following attorneys appeared on the amicus brief of the Institute for Free Speech and Foundation for Individual Rights in Education, in support of appellant; Allen J. Dickerson, of Washington, DC., and Owen Dennis Yeates, of Washington, DC.

The following attorneys appeared on the amicus brief of the Center for Constitutional Rights and Palestine Legal in support of appellant; Matthew Strugar, of Los Angeles, CA., Radhika Sainath, of New York, NY, and Maria C. LaHood, of New York, NY.

The following attorneys appeared on the amicus brief of Project South and the National Lawyers Guild, in support of appellant; Jordan S. Kushner, of Minneapolis, MN., Amith Gupta, of Atlanta, GA., Azadeh Shahshahani, of Atlanta, GA., and Reem Subei, of New York, NY.

The following attorneys appeared on the amicus brief of T'Ruah and J Street, in support of appellant; Jonathan Backer, of Washington, DC., and Mary McCord, of Washington, DC.

The following attorneys appeared on the amicus brief of The Reporters Committee for Freedom of the Press and 15 Media Organization, in support of the appellant; Bruce David Brown, of Washington, DC., Katie Townsend, of Washington, DC., Gabriel Rottman, of Washington, DC., and Caitlin Vogus, of Washington, DC.

The following attorneys appeared on the amicus brief of Professor Lawrence Glickman, in support of appellant; Ambika K. Doran, of Seattle, WA., Caesar Kalinowski, of Seattle, WA., and Tim Cunningham, of Seattle, WA.

The following attorney appeared on the amicus brief of Professors Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh, in support of appellees; Eugene Volokh, of Los Angeles, CA.

The following attorney appeared on the amicus brief of the Zachor Legal Institute, in support of appellees; Marc Arthur Greendorfer, of Red Level, AL.

The following attorney appeared on the amicus brief of Shurat Hadin-Israel Law Center in support of appellees; Robert J. Tolchin, of Brooklyn, NY.

The following attorney appeared on the amicus brief of American Jewish Committee, in support of appellees; Gregory Edward Ostfeld, of Chicago, IL.

The following attorneys appeared on the amicus brief of Christians United for Israel, Israeli-American Coalition for Action and The Israel Project, in support of appellees; Paul D. Clement, of Washington, DC., Erin E. Murphy, of Washington, DC., and Laura Wolk, of Washington, DC.

The following attorneys appeared on the amicus brief of Agudath Israel of America, Standwithus and The Union of Orthodox Jewish Congregations of America, in support of appellees; Michael L. Baum, of New York, NY., Stephen R. Blacklocks, of New York, NY., Jonathan Rotter, of Los Angeles, CA., and Aaron Stiefel, of New York, NY.

The following attorneys appeared on the amicus brief of the states of Arizona, Florida, Georgia, Indiana, Missouri, Ohio, Texas, Utah, and West Virginia, in support of appellees; Oramel H. (O.H.) Skinner, of Phoenix, AZ., Drew C. Ensign, AAG, of Phoenix, AZ., Anthony R. Napolitano, AAG, of Phoenix, AZ., Robert J. Makar, AAG, of Phoenix, AZ.

The following attorneys appeared on the amicus brief of The Louis D. Brandeis Center Inc., in support of the appellees; Lawrence J. Zweifach, of New York, NY., Akiva Shapiro, of New York, NY., and Vince Eisinger, of New York, NY.

The following attorneys appeared on the amicus brief The American Center of Law and Justice, in support of appellees; Jay Alan Sekulow, of Washington, DC., Stuart J. Roth, of Washington DC., Mark Goldfeder, of Washington, DC., Miles L. Terry, of Washington DC., Benjamin P. Sisney, of Washington, DC., and Edward L. White, of Ann Arbor, MI.

Before KELLY, MELLOY, and KOBES, Circuit Judges.

KELLY, Circuit Judge, Arkansas Times LP (Arkansas Times) sued various members of the University of Arkansas Board of Trustees (UABT) in their official capacities as trustees (collectively, the Defendants) concerning Arkansas Act 710 of 2017 (the Act). Arkansas Times sought a preliminary injunction enjoining enforcement of the Act, alleging that it violates the First and Fourteenth Amendments. The Defendants, represented by the Arkansas Attorney General's Office (the State), moved to dismiss the case. The district court denied Arkansas Times's motion for a preliminary injunction and dismissed the case. Arkansas Times appeals.

I.

In 2017, Arkansas enacted Arkansas Act 710, titled "An Act to Prohibit Public Entities from Contracting with and Investing in Companies That Boycott Israel; and for Other Purposes." The Act provides, in pertinent part:

(a) Except as provided under subsection (b) of this section, a public entity shall not:

(1) Enter into a contract with a company to acquire or dispose of services, supplies, information technology, or construction unless the contract includes a written certification¹ that the person or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel; or

(2) Engage in boycotts of Israel.

(b) This section does not apply to:

(1) A company that fails to meet the requirements under subdivision (a)(1) of this section but offers to provide the goods or services for at least twenty percent (20%) less than the lowest certifying business; or

(2) Contracts with a total potential value of less than one thousand dollars ($1,000).

Ark. Code Ann. § 25-1-503 (2017).

The Act defines "boycott of Israel" and outlines evidence that may be considered to determine whether a company is engaging in a boycott of Israel:

(1)(A)(I) "Boycott Israel" and "boycott of Israel" means 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.²

[...]

(B) A company's statement that it is participating in boycotts of Israel, or that it has taken the boycott action at the request, in compliance with, or in furtherance of calls for a boycott of Israel, can be considered by the Arkansas Development Finance Authority as a type of evidence, among others, that a company is participating in a boycott of Israel.

Id. § 25-1-502(1). Finally, for...