Arkansas Times LP v. Mark Waldrip

On November 23, 2022, FCR submitted an amici brief in the Arkansas Times LP v. Mark Waldrip free speech case.  The brief was submitted in conjunction with the Foundation for Individual Rights and Expression (FIRE).  

The FCR/FIRE brief supported the cert petition filed by the Arkansas Times newspaper, which asked the U.S. Supreme Court to review an adverse decision of the Eighth Circuit Court of Appeals.

The question at the heart of the Arkansas Times case was whether an Arkansas law requiring state contractors to certify that they do not support boycotts of Israel violated the First Amendment.  The Arkansas Times had argued that the anti-boycott contract provision prohibited speech, and also amounted to compelled speech, making it unconstitutional.  The Eighth Circuit, sitting en banc, held that the contract provision only pertained to commercial conduct, and did not extend to protected speech. 

In their amici brief, FCR and FIRE argued that the Arkansas Times case posed a critical test to one of the U.S. Supreme Court’s First Amendment precedents – its 1982 decision in NAACP v. Clairborne Hardware, which held that boycotts involve “constitutionally protected activity” including “speech, assembly, association, and petition.”

The brief also reviewed the current cultural moment that America finds itself in, and described how government is increasingly being enlisted to suppress or compel speech.  Pressure to dictate political orthodoxy has been coming from both the left and the right in recent years.  At public universities, left-leaning administrators have sought to suppress disfavored student speech and compel faculty speech.  At the same time, right-leaning state governors and legislatures have proposed or implemented bans on the teaching of “divisive concepts.”

The anti-boycott statute passed by the State of Arkansas is one more example of this trend, with the state requiring all contractors doing business with Arkansas to forfeit their free-speech rights related to boycotts of Israel, despite clear Supreme Court precedents that both protect speech and association rights related to boycotts, and which bar the state from viewpoint discrimination in regard to those speech rights.

In February of 2023, the U.S. Supreme Court declined to hear the Arkansas Times case, despite federal judges in Arizona, Kansas, Texas, and Georgia finding that similar anti-boycott bills did not pass constitutional muster.

FCR and FIRE were represented by Mahesha Subbaraman of Subbaraman, PLLC.  The Arkansas Times was represented by the American Civil Liberties Union.