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 supports the cert petition filed by the Arkansas Times newspaper, asking the U.S. Supreme Court to review the decision of the Eighth Circuit Court of Appeals, which ruled against the paper.
The question at the heart of the Arkansas Times case is whether an Arkansas law requiring state contractors to certify that they are not supporting boycotts of Israel violates the First Amendment. The Arkansas Times has argued that the anti-boycott contract provision both prohibits speech, and amounts to compelled speech, and as such is 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 argue that the Arkansas Times case poses a critical test of the U.S. Supreme Court’s First Amendment precedents, including 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 reviews the current cultural moment that America finds itself in, and describes 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.
FCR and FIRE were represented by Mahesha Subbaraman of Subbaraman, PLLC. The Arkansas Times is represented by the American Civil Liberties Union.