On February 21, 2023, the Supreme Court denied certiorari in Arkansas Times LP v. Waldrip (Waldrip III). Opponents of the Boycott, Divestment, Sanctions (BDS) campaign rejoiced, claiming victory. The Court, by not considering the question presented—whether Arkansas could require those seeking state contracts to certify that they were not engaged in a boycott of Israel, and would not be for the life of the contract— provided opponents of BDS with a judicial blessing for their counter-campaign.
Arkansas is one of dozens of states with such a law on the books. And prior to the Eighth Circuit’s decision to uphold the Arkansas law in 2022, no anti-boycott law of similar content had ever survived appellate-level scrutiny.
How did the Eighth Circuit come to a different conclusion than the district courts that preceded it? This Note argues that a close read of the decision reveals a failure to apply settled law on boycotts and the protections of the First Amendment. Rather than relying on longstanding precedent regarding the explicit protections for certain political boycotts expressed by the Supreme Court in NAACP v. Claiborne Hardware Co., the Eighth Circuit reinterpreted the holding, with irresponsibly thin justification. In so doing, it failed to recognize that the challenged law constituted viewpoint discrimination.