To date, twenty seven states, including Arkansas, have adopted laws designed to discourage boycotts against Israel. In October of 2018 The Arkansas Times, a weekly newspaper in Arkansas challenged the constitutionality of Arkansas’ anti-BDS legislation. Act 710 is an Arkansas state statute requiring companies that do business with the state to certify that they are not currently engaged in a boycott of Israel, and that they will not participate in a boycott of Israel for the duration of their contract with the state. The Arkansas Times was preparing to enter into an advertising contract with The University of Arkansas Pulaski Technical College (“Pulaski Tech”). Consistent with Act 710’s certification requirements, Pulaski Tech informed The Arkansas Times that it must certify that it is not currently engaging in a boycott of Israel, nor would it for the duration of the contract.The Arkansas Times refused to provide the necessary certification. As a result, the newspaper could not contract with Pulaski Tech. Subsequently, The Arkansas Times filed a lawsuit against the State of Arkansas asserting that Act 710 violates the First and Fourteenth Amendments by impermissibly compelling political speech and by restricting state contractors from engaging in protected First Amendment activities. The Arkansas Times sought a preliminary injunction to prohibit Pulaski Tech from enforcing the law’s certification provision while the suit was pending. Pulaski Tech opposed the motion and moved to dismiss. The Arkansas District Court denied the plaintiff’s motion for a preliminary injunction. The District Court reasoned that for The Arkansas Times to prevail it must first demonstrate that a refusal to deal, or its purchasing decisions, fall under the First Amendment, which protects speech and inherently expressive conduct. The Supreme Court, in a previous unanimous holding, held that boycotts are not inherently expressive conduct subject to the First Amendment (Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006)). In consonance with this ruling, the Arkansas District Court reaffirmed that a decision not to purchase goods is not speech, because putting aside any accompanying explanatory speech, a refusal to deal does not “communicate ideas through words or other expressive media.” Furthermore, the District Court reasoned that a boycott is not inherently expressive, because absent accompanying speech the external observer would have no idea that the contractor is engaged in a boycott. The observer would simply believe that the products located at the contractor’s office reflect its commercial, as opposed to its political, preferences. The District Court denied The Arkansas Times’ motion for a preliminary injunction and dismissed its complaint for failure to state a claim. Following the District Court’s decision, The Arkansas Times filed an appeal in the 8th Circuit Court of Appeals. Arkansas’ Attorney General filed a brief in support of the District Court’s ruling upholding the Arkansas anti-BDS law. On June _, 2019, the Brandeis Center filed an amicus brief urging the Court of Appeals to affirm the District Court’s decision in favor of the Arkansas anti-BDS law. The brief presented two key arguments as to why Act 710 does not violate the First Amendment. 1. States may impose conditions on government contracts to promote public policy objectives, as the State of Arkansas did to discourage discrimination: The U.S. Supreme Court has consistently distinguished between direct regulation of constitutionally protected activity and mere incentive-setting conditions on subsidies. According to the amicus brief filed by the Brandeis Center, the Arkansas law does not forbid anyone from boycotting Israel—collectively or individually. Rather, the Act merely declines to extend a subsidy to state contractors for the duration of their participation in any such boycott. The federal government, as well as a large number of state and local governments, condition government contracts on the contractors’ refraining from discrimination on the basis of national origin, race, sexual orientation, and other classifications. It is fundamental that the First Amendment does not prevent governments from setting contract conditions that combat racism, sexism, anti-Semitism, and other discriminatory conduct and therefore, the Act, like the broader use of conditions to discourage discrimination, is constitutionally sound. 2. Discriminatory Conduct – such as a boycott of Israel – is not protected by the First Amendment: As explained in the Brandeis Center’s amicus brief, discrimination is not protected speech and therefore, is not a constitutionally protected form of expression. Boycotts of Israel, which single out the one Jewish state, are eerily similar to the historical boycotts that exclusively targeted Jews. A boycott focusing on a single country discriminates on the basis of national origin by categorically treating that country’s affiliated persons and products as different from all other persons or products no matter what their relative merit is. National origin discrimination is one of the textbook categories of impermissible discrimination that state and federal laws legitimately and constitutionally seek to root out. The Brandeis Center amicus brief also noted that there is no automatic constitutional protection for boycotts. Contrary to the position taken by The Arkansas Times, “individual purchasing decisions” are not considered protected elements of a boycott. The Arkansas Act permits companies that are doing business with Arkansas to associate with boycotters, and to even speak, write and advocate in support of boycotts of Israel at the same time that the companies are contracting with the State. The businesses are only prohibited from actively and actually engaging in the conduct of boycotting during the term of the business contract with the State. Adopting the perspective urged by The Arkansas Times would lead to immunizing a discriminatory boycott from applicable state laws and ignoring the entire structure of laws forbidding discrimination on the basis of national origin, religion, and other classifications. The State of Arkansas’s refusal to award state contracts to companies engaged in a discriminatory boycott of Israel and to those who do business with Israel – while steering clear of any regulation of speech – is entirely appropriate. The Brandeis Center amicus brief was authored by Lawrence J. Zweifach, Akiva Shapiro, and Vince Eisinger of Gibson, Dunn & Crutcher LLP.