Court Rules Anti-BDS Statute Unconstitutional in Arkansas Times v Waldrip

In 2019, NCAC joined an amicus brief in Arkansas Times v. Waldrip, a case challenging an Arkansas statute that requires state contractors, including newspapers running state-purchased advertising, to certify that they will not boycott Israel or take “other actions” in support of such boycotts. In February 2021, the Eighth Circuit ruled in our favor, concluding that the statute imposed an unconstitutional condition on state contractors’ exercise of their First Amendment rights.

The amicus brief was lead by the Reporters Committee for Freedom of the Press and signed by 15 organizations. It argued that the Arkansas law interferes with editorial discretion by requiring that publications running state-purchased advertisements risk the perception that they take a position in one direction or the other on such boycotts. The brief also argues that reasonable news outlets might self-censor for fear of inadvertently violating the law and that it is well-established that the withdrawal of advertising in response to the exercise of editorial discretion is actionable First Amendment retaliation. Finally, the amicus brief argues that even facially neutral economic regulation, like anti-boycott laws, can harm the press if they are used in an attempt to generate favorable coverage or stifle negative reporting.

As advocates for the news media, NCAC and the other amici have a strong interest in protecting the editorial independence of the press from undue political or economic influence. Editorial independence is a sacrosanct First Amendment value. Luckily, the Eighth Circuit agreed, concluding that the statute unconstitutionally restricted state contractors from exercising their First Amendment rights.