Forty years ago, in NAACP v. Claiborne Hardware (1982), the Supreme Court made clear that the First Amendment protects the right to engage in politically motivated boycotts. But a 2018 Arkansas law stripped state contractors of that right regarding boycotts related to goods and services originating from Israel — even requiring them to sign a pledge that they would not engage in such activities. The Arkansas Times, which regularly included advertisements from an Arkansas public college, refused to sign and sued to enjoin the law as violating its First Amendment rights. The U.S. Court of Appeals for the Eighth Circuit thought otherwise, ruling that Arkansas can regulate state contractors’ commercial activities through a strained interpretation of Claiborne Hardware, claiming the decision protected only activities related to boycotts, not direct participation in a boycott.
Similar laws are proliferating around the country, limiting free speech on- and off-campus. On November 23, 2022, FIRE and the Forum for Constitutional Rights filed an amicus brief arguing that the Supreme Court of the United States should review the Eighth Circuit’s decision. We argued that Arkansas’ law targets political expressive conduct protected by the First Amendment, and that the Supreme Court must strongly affirm its long-standing precedent to stop the surge of partisan legislation around the country attempting to put the government’s thumb on the scale for one side of a public debate.