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Arkansas Act 710 — Anti-BDS Law (2017)

  • Law: Arkansas Act 710 of 2017 (codified at Ark. Code Ann. § 25-1-501 et seq.)
  • Passed: 2017 Arkansas General Assembly
  • Signed by: Governor Asa Hutchinson
  • Status: In effect; upheld by the 8th Circuit Court of Appeals; SCOTUS declined to review (2022)

What It Does​

Arkansas Act 710 requires any company entering into a state contract worth $1,000 or more to certify that it is not currently boycotting Israel and will not do so during the contract period. The law defines "boycott of Israel" as refusing to deal with, terminating business activities with, or taking other actions intended to limit commercial relations with Israel or with persons doing business in Israel.

Key provisions:

  • Applies to any vendor or contractor doing business with the state, regardless of size, for contracts over $1,000.
  • Requires the contractor to certify non-participation in any Israel boycott in the contract itself.
  • Empowers state agencies to cancel contracts upon learning that a contractor is engaged in a boycott.
  • No equivalent requirement exists for any other country.

The Arkansas Times Case​

The highest-profile legal challenge to Act 710 was brought by the Arkansas Times, an independent newspaper in Little Rock.

  • The Arkansas Times was contracted to place advertising with the University of Arkansas system.
  • The University required the newspaper to sign the anti-boycott certification as a condition of the ad contract.
  • The Arkansas Times refused, arguing that the certification violated its First Amendment rights to editorial and commercial freedom.
  • The newspaper sued, and the case became the leading test of whether anti-BDS contractor certifications are constitutional.

8th Circuit ruling (2022): The full 8th Circuit (en banc) reversed an earlier panel decision and upheld Act 710. The majority held that the law regulates only commercial activity — decisions about whom to do business with — not protected political speech or expression. The court applied only rational basis review (not strict scrutiny) and found the state had a rational interest in preventing discrimination against Israeli businesses.

SCOTUS declined review (2022): The Supreme Court denied certiorari in Arkansas Times v. Waldrip, leaving the 8th Circuit's ruling intact — but also leaving unresolved a circuit split with courts in other circuits that have applied strict scrutiny and struck down similar laws.

Why Critics Oppose It​

  • Political viewpoint test on contractors — Critics, including the ACLU, argue the certification is an ideological loyalty test: you may only do business with the state of Arkansas if you agree not to participate in a specific political boycott targeting a specific country.
  • Reaches the press — The Arkansas Times case shows the law applies to news organizations, potentially coercing editorial decisions through economic pressure.
  • One country only — The selective application to boycotts of Israel and no other country is itself a viewpoint-discriminatory choice by the legislature.
  • Chilling effect beyond contractors — Organizations and individuals who would otherwise refuse contracts rather than certify simply stop pursuing public contracts, reducing civic participation without a formal prosecution.
  • Regulatory creep risk — Critics warn that if states can condition contracts on non-participation in one political boycott, the same logic could be extended to any boycott the state dislikes.

Constitutional Concerns​

  • 1st Amendment (freedom of speech) — Whether pledging not to engage in politically motivated commercial conduct is protected speech is the core dispute, currently unresolved at SCOTUS.
  • 1st Amendment (expressive association) — Organizations use purchasing and contracting decisions to signal and reinforce political identity; compelling them to abandon that use of economic activity compels expression.
  • Unconstitutional conditions doctrine — Government may not condition a benefit (contract) on the waiver of a constitutional right.

Why This Matters for We The Citizens​

The Arkansas Times case is the clearest judicial record of anti-BDS certification overreaching into press freedom. A state legislator who voted for Act 710 voted to make an independent newspaper choose between its editorial independence and advertising revenue from state institutions.

See also: Anti-BDS State Laws Overview | Texas HB 89 | State Bad Laws Overview

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