Last year, letters from the state of Arkansas began drifting across my desk, demanding that our weekly newspaper, the Arkansas Times, either sign a pledge not to boycott Israel or forfeit all state advertising.
The letters were the result of an obscure, cookie-cutter law passed in 2017 by our Republican-controlled legislature. Specifically, it requires any company entering into a contract with a public entity to certify that it “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.”
Initially, we and our longtime state agency clients simply ignored it and went about our business of producing a newspaper. But when the University of Arkansas System began strictly enforcing the law last fall, it told us that we had to sign the anti-boycott pledge in order to continue running advertisements for the University of Arkansas-Pulaski Technical College.
At that point, we had a decision to make. Times are hard in the publishing industry, and we really needed the business. But at what price? It had never occurred to us to boycott anyone, but the idea that the state would force a publishing company to take a political position in return for business was offensive.
We then learned the law offered to let us continue to do business without signing the pledge, so long as we accepted a 20 percent cut in our ad rates. I said, “Well, to hell with them.” We were not going to pay a 20 percent tax for the right to hold beliefs independent of the Arkansas Legislature, at least not without a fight.
So, with the help of the American Civil Liberties Union, the state to have this law overturned on free speech grounds. Our hearing to get an injunction against enforcement of the law is on Friday, Jan. 4. In other states where similar laws have been passed, citizens have sued because they support the boycott against Israel based on how that country is treating the Palestinians. We’re focused on Arkansas at the Arkansas Times and have never editorially advocated for a boycott of Israel. But as journalists, citizens, and taxpayers, we dispute the right of the state to impose any ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit.
We’ve heard through the grapevine that the law has created some absurd confrontations for the state. For example, many state colleges and universities bring in touring musicians for concerts. Imagine demanding that a Rock & Roll Hall of Fame musician sign what amounts to a loyalty oath to the state of Israel before he can be paid. An architect from Fort Smith, Arkansas, who was bidding on a state job said it well when he wrote his local newspaper that he has “no political axe to grind with either Israel or the Palestinians, but this is a rather remarkable thing to require of a citizen to get a job.”
Supporters of the law have argued that it is regulating action, not free speech. But political boycotts have long been recognized as free speech, going back to the civil rights boycotts of white businesses in Mississippi during the 1960s. If political boycotts are not protected, then neither is political speech.
What other pledges might state legislatures require if this law is upheld? And what might the federal government, which has considered passing a criminal anti-boycott bill, come up with? Could legislatures in blue states penalize citizens or businesses for flying the Confederate flag? Might red state legislatures prohibit the state from doing business within anyone who boycotts Trump family businesses? Imagine similar scenarios where boycotts of tobacco companies or political parties are at issue.
This law is a rabbit hole our country does not need to go down. Since when do American citizens have to pledge to act in the interest of a foreign power in order to do business with their own government? Since when does the state of Arkansas punish its own taxpayers in an effort to assist a foreign government with its domestic policy?
As an American, I say it is none of their damn business what political beliefs we hold. We’ll see them in court.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.