No. 19-01378 ______IN THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______ARKANSAS TIMES LP, Plaintiff-Appellant, v. MARK WALDRIP, et. al., Defendants-Appellees, ______On Appeal from the United States District Court for the Eastern District of Arkansas The Honorable Brian S. Miller (No. 4:18-00914) ______Brief of Amici Curiae The Louis D. Brandeis Center for Human Rights Under Law and Israeli-American Coalition for Action in Support of Defendants-Appellees’ Petition for Rehearing En Banc ______

NATHAN LEWIN LEWIN & LEWIN, LLP 888 17th Street NW, 4th Floor Washington, DC 20006 (202) 828-1000 [email protected]

Attorney for Amici Curiae

Appellate Case: 19-1378 Page: 1 Date Filed: 03/31/2021 Entry ID: 5020670 CORPORATE DISCLOSURE STATEMENT

The Louis D. Brandeis Center for Human Rights Under Law and the Israeli-

American Coalition for Action certify that they have no parent corporation and no publicly held corporation owns ten percent or more of their stock.

FRAP 29(a)(4)(E) STATEMENT

No counsel for any party authored this brief in whole or in part. No party or party’s counsel contributed money that was intended to fund the preparation or submission of this brief. No person other than the Brandeis Center, Inc., the Israeli-

American Coalition for Action, or their counsel contributed money that was intended to fund preparation or submission of this brief.

Counsel for both parties consented to the filing of this brief.

i Appellate Case: 19-1378 Page: 2 Date Filed: 03/31/2021 Entry ID: 5020670 TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ...... i

FRAP 29(a)(4)(E) STATEMENT ...... i

TABLE OF AUTHORITIES ...... iii

INTEREST OF THE AMICI CURIAE ...... 1

ARGUMENT ...... 2

I. THE PANEL’S DECISION SHOULD BE REVIEWED EN BANC BECAUSE IT CONFLICTS WITH MULTIPLE STATUTORY- CONSTRUCTION DECISIONS IN THIS CIRCUITAND PRESENTS A QUESTION OF EXCEPTIONAL IMPORTANCE ...... 2

II. THE PANEL OPINION DOES NOT VINDICATE ITS VIOLATION OF TWO WELL-ESTABLISHED RULES OF STATUTORY CONSTRUCTION ...... 7

III. THE ARKANSAS LAW IS CONSTITUTIONAL BECAUSE IT IS A VALID EXERCISE OF THE STATE’S AUTHORITY TO SET CONDITIONS FOR RECIPIENTS OF GOVERNMENT CONDUCT ...... 8

IV. COMMERCIAL BOYCOTT OF ISRAEL IS CONDUCT, NOT SPEECH, AND IT MAY BE DETERRED UNDER THE FIRST AMENDMENT ...... 10

CONCLUSION ...... 12

CERTIFICATE OF COMPLIANCE ...... 13

CERTIFICATE OF SERVICE ...... 14

ii Appellate Case: 19-1378 Page: 3 Date Filed: 03/31/2021 Entry ID: 5020670 TABLE OF AUTHORITIES

Cases Arkansas AFL-CIO v. Federal Communications Commission, 11 F.3d 1430 (8th Cir. 1993) ...... 4

DeBartolo Corp. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988) ...... 4

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ...... 11

Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997) ...... 5

Planned Parenthood of Mid-Missouri v. Dempsey, 167 F.3d 458 (8th Cir. 1999) ...... 4

Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir. 2001) ...... 4

Union Pacific R. Co. v. United States Dep’t of Homeland Security, 738 F.3d 885 (8th Cir. 2013) ...... 4

United States v. Freeman, 473 F.2d 7 (8th Cir. 1973) ...... 5

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) ...... 4

United States v. Stanko, 491 F.3d 408 (8th Cir. 2007) ......

United States v. Walker, 393 F.3d 819 (8th Cir. 2005) ...... 5

Rules Ark. Code Ann. § 25-1-502(1)(A)(i) ...... 3

Fed. R. App. P. 35(b)(1) ...... 1

iii Appellate Case: 19-1378 Page: 4 Date Filed: 03/31/2021 Entry ID: 5020670 INTEREST OF THE AMICI CURIAE

The Louis D. Brandeis Center for Human Rights Under Law (the “Brandeis

Center” or the “Center”) is an independent, non-partisan institution for public interest advocacy, research, and education. The Center’s mission is to advance the civil and human rights of the Jewish people and to promote justice for all. The

Center’s education, research, and advocacy focus especially, but not exclusively, on the problem of anti-Semitism on college and university campuses. In fulfilling its mission, the Brandeis Center emphasizes the importance of clear, comprehensive, and specific anti-discrimination policies for government entities, including public universities. The Center publishes guidance documents for organizations seeking to adopt uniform definitions of anti-Semitism, which in some cases manifests in the form of anti-Israel boycotts, divestments, and sanctions. The Center’s attorneys also advise and represent students in higher education who have been victims of anti-Semitic conduct in violation of Title VI of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000d to

2000d(4)(a)) and other laws. The Center believes that the American people must respect and actively safeguard our First Amendment right to freedom of speech.

The Center affirms the statement of its namesake, Justice Louis D. Brandeis, in

Whitney v. California: “If there be a time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy

1

Appellate Case: 19-1378 Page: 5 Date Filed: 03/31/2021 Entry ID: 5020670 to be applied is more speech, not enforced silence.” 274 U.S. 357, 377 (1927)

(Brandeis, J., concurring). At the same time, the Center believes that the government has the responsibility and authority to zealously protect the right of all citizens not to be discriminated against on the basis of race, national origin, ethnicity, or religion.

The Israeli-American Coalition for Action (“IAC for Action”) is a non- profit, non-partisan organization that advocates on behalf of Israeli-American communities throughout the United States. IAC for Action works with policy- makers on public safety, anti-discrimination, and other initiatives of importance to the Israeli-American community, including strengthening ties between the United

States and Israel and opposing the anti-Israel boycott, divestment, and sanction movement.

ARGUMENT I. THE PANEL’S DECISION SHOULD BE REVIEWED EN BANC BECAUSE IT CONFLICTS WITH MULTIPLE STATUTORY-CONSTRUCTION DECISIONS IN THIS CIRCUIT AND PRESENTS A QUESTION OF EXCEPTIONAL IMPORTANCE

Rule 35(b)(1) of the Federal Rules of Appellate Procedure authorizes en banc rehearing if a panel’s decision conflicts with another decision in the same

Circuit and if it presents a question of “exceptional importance.” The panel’s decision in this case conflicts with two important principles of statutory

2 Appellate Case: 19-1378 Page: 6 Date Filed: 03/31/2021 Entry ID: 5020670 construction that have been re-affirmed time and again in decisions of the Eighth

Circuit rendered by its most distinguished judges. The central issue has

“exceptional importance” because it may prompt vexatious litigation and affect rulings in other Circuits where State legislatures have enacted anti-boycott laws that are similarly worded.

The panel’s opinion construed the words “other actions” in Ark. Code Ann.

§ 25-1-502(1)(A)(i) to “capture constitutional activity” such as “supporting or promoting a boycott of Israel” by posting signs, encouraging others to boycott

Israel, or publicly criticizing the Arkansas law. On this account the panel held that

“the Act imposes a condition on government contractors that implicates their First

Amendment rights” and reversed the judgment of the District Court.

This construction of the words “other actions” in the statute violated two basic rules of statutory interpretation that the judges of this Circuit have invoked many times:

(1) the rule that statutes should be interpreted to avoid constitutional doubts;

(2) the rule (ejusdem generis) that general terms in a statute that follow

specific terms must be construed as similar to those specifically

described.

3 Appellate Case: 19-1378 Page: 7 Date Filed: 03/31/2021 Entry ID: 5020670 A. “Statutes should be interpreted, if possible, to avoid doubts about their

constitutionality.”

The late Chief Judge Richard S. Arnold articulated and applied this rule of statutory construction in his concurring opinion in Arkansas AFL-CIO v. Federal

Communications Commission, 11 F.3d 1430, 1442 (8th Cir. 1993). The principle is so firmly grounded in American law that the Supreme Court of the United States described it as “beyond debate” in DeBartolo Corp. Florida Gulf Coast Bldg. &

Const. Trades Council, 485 U.S. 568, 575 (1988). Justice Oliver Wendell Holmes said in United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916), “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”

The judges of this Court have invoked this principle in a variety of circumstances. Union Pacific R. Co. v. United States Dep’t of Homeland Security,

738 F.3d 885, 892-893 (8th Cir. 2013) (Circuit Judges Riley, Melloy, and

Shepherd); Republican Party of Minnesota v. Kelly, 247 F.3d 854, 881 (8th Cir.

2001) (Circuit Judges McMillian and John R. Gibson); Planned Parenthood of

Mid-Missouri v. Dempsey, 167 F.3d 458, 461 (8th Cir. 1999) (Circuit Judges

Wollman, Bright, and Hansen).

The words “other actions” in the Arkansas law follows two activities itemized in the statutory definition of “boycott Israel” – “engaging in refusals to

4 Appellate Case: 19-1378 Page: 8 Date Filed: 03/31/2021 Entry ID: 5020670 deal, [and] terminating business activities.” Interpreting “other actions” as covering only additional forms of commercial activity raises no First Amendment issue other than the broad claim that was pretermitted by the panel majority. By reading

“other actions” expansively as reaching expressive non-commercial conduct, the panel created – rather than avoided – constitutional doubt.

B. “The rule of ejusdem generis . . . limits general terms which follow

specific ones to matters similar to those specified.”

Judge Roger L. Wollman, speaking for a unanimous panel that included

Circuit Judge Floyd R. Gibson and District Judge Montgomery applied the traditional well-established rule of ejusdem generis in construing a section of the

Federal Arbitration Act in Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 836

(8th Cir. 1997). See also United States v. Walker, 393 F.3d 819, 824 (8th Cir.

2005) (Circuit Judges Wollman and Heaney and District Judge Holmes); United

States v. Stanko, 491 F.3d 408, 415-416 (8th Cir. 2007) (Circuit Judges Colloton and Gruender); United States v. Freeman, 473 F.2d 7, 9 (8th Cir. 1973) (Circuit

Judges Lay, Heaney, and Stephenson).

When it read the words “other actions” as possibly including “post[ing] anti-

Israel signs, donat[ing] to causes that promote a boycott of Israel, encourage[ing] others to boycott Israel, or even publicly criticiz[ing] the Act” (Opinion, pp. 12-

13), the panel was not construing “other actions” as similar to “refusals to deal,

5 Appellate Case: 19-1378 Page: 9 Date Filed: 03/31/2021 Entry ID: 5020670 terminating business activities.” The conduct specified in the law is commercial practice; the acts that the panel included in its interpretation of the general term

“other actions” are forms of nonbusiness expression. The panel’s reading of the law stretches it far beyond the kind of conduct that is explicitly described. The panel’s interpretation cannot be reconciled with the ejusdem generis rule.

C. The Anti-Boycott Laws of Sixteen Other States Have the Same

Language as Appears in Arkansas’ Law.

The inclusive “other actions” language appears in the anti-boycott laws of other States: Arizona, Florida, Indiana, Kansas, Kentucky, Louisiana, Maryland,

Minnesota, , Missouri, Nevada, North Carolina, Ohio, Oklahoma, South

Dakota, and Texas.* If the panel’s opinion is left standing as the conclusion of the

Eighth Circuit and the Supreme Court fails to review this case because there is not yet a conflict of Circuits, the American Civil Liberties Union will surely challenge the laws of other States on the same ground. Many Circuits will then confront the statutory construction issue presented by the panel’s decision. If, as we maintain,

* Ariz. Rev. Stat. Ann. § 35-393(1); Fla. Stat. Ann. § 215.4725(1)(a); Ga. Code Ann. § 50-5- 85(a)(1); Kan. Stat. Ann. § 75-3740e(a); Md. Order No. 2017-25 (Oct. 23, 2017); Minn. Stat. Ann. § 16C.053(1)(b); Miss. Code. Ann. § 27-117-3(a); Mo. Ann. Stat. § 34.600(3)(1); Ohio Rev. Code Ann. § 9.76(a)(1); Okla. Stat. Ann. tit. 74, § 582(e)(1); S.D. Order No. 2020-01 (Jan. 14, 2020), https://boardsandcommissions.sd.gov/bcuploads/Executive%20Order%202020- 01.pdf.; S.B. 143, 1st Reg. Sess. (Ky. 2019); Tex. Gov't Code Ann. § 808.001(1); Nev. Rev. Stat. Ann. § 333.338(3)(a)(1); La. Stat. Ann. § 39:1602.1(c)(1); N.C. Gen. Stat. Ann. § 147-86.8

6 Appellate Case: 19-1378 Page: 10 Date Filed: 03/31/2021 Entry ID: 5020670 the panel’s reading of the law is manifestly erroneous because it conflicts with governing Supreme Court precedent, this Court should promptly correct the error and thereby prevent dubious lawsuits and the waste of judicial resources in the federal courts.

II. THE PANEL OPINION DOES NOT VINDICATE ITS VIOLATION OF TWO WELL-ESTABLISHED RULES OF STATUTORY CONSTRUCTION

The panel majority acknowledges the two rules of statutory construction that it chose to violate in this case. Footnote 8 of its opinion addresses the ejusdem generis rule and asserts that “multiple rules of statutory interpretation” justify reading “other actions” as dissimilar from the commercial practices that the law specifies. The “multiple rules” that warrant this departure from a straightforward reading of the law are not specified. The panel majority relies on language in a cited decision of the Arkansas Supreme Court that invokes “legislative intent” and

“other rules of construction.” But it cites no support for the conclusion that the

Arkansas legislature intended to deter speech. The panel relies on a statutory provision that authorizes consideration of certain “type[s] of evidence” to determine a business’ intent when it engages in commercial activity. This legislative approval of evidence that is obviously relevant in proving intent in the

7 Appellate Case: 19-1378 Page: 11 Date Filed: 03/31/2021 Entry ID: 5020670 commission of a commercial act is not a license to suppress constitutionally protected speech.

Footnote 12 purports to rebut the constitutional avoidance principle. In hyperbolic over-statement the panel opinion declares that “considering the whole

Act” there is only “one permissible interpretation – that the Act restricts speech in addition to economic refusals to deal with Israel.” District Judge Miller and Circuit

Judge Kobes apparently were not just wrong; they crossed the boundary into territory that is “impermissible.” No rationale is provided to sustain this extraordinary ipse dixit.

III. THE ARKANSAS LAW IS CONSTITUTIONAL BECAUSE IT IS A VALID EXERCISE OF THE STATE’S AUTHORITY TO SET CONDITIONS FOR RECIPIENTS OF GOVERNMENT CONDUCT

States are permitted to advance legitimate state interests through conditions on government contracts. As a result, anti-discrimination laws that employ conditions on government subsidies and contracting routinely withstand constitutional challenges, including under the First Amendment.

The Arkansas law requires that state contractors refrain from “engag[ing] in

. . . a boycott of Israel,” defined principally as “refusals to deal . . . with Israel, or persons or entities doing business in Israel.” It enforces this requirement and disincentivizes discriminatory boycotting by requiring that the recipient of a

8 Appellate Case: 19-1378 Page: 12 Date Filed: 03/31/2021 Entry ID: 5020670 government contract certify that it will refrain from this discriminatory conduct or else suffer reduced payment for its services.

Federal, state, and local governments across the United States regularly and appropriately impose similar conditions on government contractors to ensure that public funds are not used for illegal or invidious purposes. Many laws, like the Act at issue here, require government contractors to refrain from discrimination on the basis of national origin, race, religion, and other impermissible criteria as a condition of receiving government contracts. Such conditions on contracting are common means of enforcing anti-discrimination laws at all levels of government.

By dismissing the complaint in this case District Judge Miller protected the government’s ability to promote equality through deterrence of discriminatory conduct. Arkansas should not reward discrimination based on national origin with government contracts. Validating such contracts would be a naked assault on principles of equal treatment. The First Amendment does not compel government subsidization of discriminatory conduct. It permits government to demand nondiscriminatory conduct from government contractors – an objective that federal, state, and local governments properly seek to achieve. Pages 5-10 of the

Brandeis Center’s Amicus Curiae brief on appeal to the panel document in detail the legal basis and the judicial precedents that support this proposition.

9 Appellate Case: 19-1378 Page: 13 Date Filed: 03/31/2021 Entry ID: 5020670 IV. COMMERCIAL BOYCOTT OF ISRAEL IS CONDUCT, NOT SPEECH, AND IT MAY BE DETERRED UNDER THE FIRST AMENDMENT

Discrimination is not protected speech. The Act targets only the discriminatory conduct of engaging in a boycott of Israel by state contractors. It permits contractors to speak passionately, associate, and advocate openly in any forum on any subject, including even support of a boycott of Israel. And contractors may choose to forego government contracts if they wish to engage in commercial activity to boycott Israel. There is no threat of any other penalty or sanction.

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 irrespective of their individual merit.

The Arkansas Legislature explicitly found in Section 501(3) of the Act that

“[c]ompanies that refuse to deal with . . . Israel, or entities that do business with or in [Israel], make discriminatory decisions on the basis of national origin.” National origin discrimination is one of the textbook categories of impermissible discrimination that state and federal laws validly seek to root out with means that are constitutionally permissible.

10 Appellate Case: 19-1378 Page: 14 Date Filed: 03/31/2021 Entry ID: 5020670 A boycott against Israel is doubly invidious because similar boycotts have historically been motivated by animus against the Jewish people on account of their religion. Boycott campaigns have been an outlet for anti-Semitism since the early eighteenth century. Nazi encouragement led to a resurgence of anti-Jewish boycotts. The Nazi regime’s first nationwide action in Germany against the was a boycott. Post-World War II boycotts have formally targeted the State of

Israel but have been closely associated with the history of anti-Semitic boycotts.

Hence the Act combats odious discrimination on the basis of both nationality and religion.

Nor is such discrimination immunized from regulation merely because it might be related to a boycott. Some elements of a boycott may be “safeguarded by the First Amendment” under NAACP v. Claiborne Hardware Co., 458 U.S. 886,

907-909 (1982), but individual purchasing decisions are not among those

“elements.” The Arkansas law is sensitive to this difference because it prescribes only that contractors certify that they are not “engaging” in refusals to deal and not

“terminating” business activities – words that describe non-expressive conduct.

See the more detailed discussion and the citation of legal precedents at pages 15-18 of the Brandeis Center’s Amicus Curiae brief on appeal to the panel.

11 Appellate Case: 19-1378 Page: 15 Date Filed: 03/31/2021 Entry ID: 5020670 CONCLUSION

For the foregoing reasons Arkansas’ petition for rehearing en banc should be granted and, on rehearing by the full Circuit, the judgment of the District Court should be affirmed.

March 31, 2021 Respectfully submitted, s/ Nathan Lewin

NATHAN LEWIN LEWIN & LEWIN, LLP 888 17th Street NW, 4th Floor Washington, DC 20006 (202) 828-1000 [email protected]

Attorney for Amici Curiae

12 Appellate Case: 19-1378 Page: 16 Date Filed: 03/31/2021 Entry ID: 5020670 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 29, I certify that the attached brief is proportionately spaced, has a New Times Roman typeface of 14 points, and complies with the word count limitations set forth in Fed. R. App. P. 29(a)(5). This

Brief has 2,542 words, excluding the portions exempted by Fed. R. App. P. 32, according to the word count feature of Microsoft Word used to generate this Brief.

Dated: March 31, 2021 /s/ Nathan Lewin Nathan Lewin

13 Appellate Case: 19-1378 Page: 17 Date Filed: 03/31/2021 Entry ID: 5020670 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Amicus Brief in support of Defendants-Appellees with the Clerk of the Court for the United States

Court of Appeals for the Eighth Circuit by using the appellate CM/ECF system on

March 31, 2021.

I certify that all participants in the case are registered CM/ECF users, and that service will be accomplished by the appellate CM/ECF system.

Dated: March 31, 2021 /s/ Nathan Lewin Nathan Lewin

14 Appellate Case: 19-1378 Page: 18 Date Filed: 03/31/2021 Entry ID: 5020670