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Randy Fine: Repeal Florida Statute 215.4725 Now And Protect The First Amendment.

In 2016, the State of Florida passed a law that forbids the State from doing business with any company that boycotts or supports a boycott of Israel.

The bill contained a provision that allowed companies whose contracts with the State with a value under $1 million dollars would be exempt.

In 2018, Brevard County Representative Randy Fine sponsored a bill removing the $1 million dollar limit thus banning the State from doing business with any company or person who boycotted Israel or supported such a boycott.

The original bill requires the State to maintain a list of companies that boycott Israel (or support the Boycott, Divest, Sanction (BDS) movement) and have companies certify that they are not taking part in any such boycott before the state signs contract with the company.

About the same time, the State of Arkansas was doing something similar in passing a similar law called “Act 710 that required the State not contract with companies that boycott Israel or support a boycott of Israel.

The Act provides, in pertinent part:

(a) Except as provided under subsection (b) of this section, a public entity shall not:

(1) Enter into a contract with a company to acquire or dispose of services, supplies, information technology, or construction unless the contract includes a written certification that the person or company is not currently engaged in, and agrees for the duration of the contract not
to engage in, a boycott of Israel; or

(2) Engage in boycotts of Israel.

{….}

The Act defines “boycott of Israel” and outlines evidence that may be considered to determine whether a company is engaging in a boycott of Israel:

(1)(A)(I) “Boycott Israel” and “boycott of Israel” means engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner.
[. . .]
(B) A company’s statement that it is participating in boycotts of Israel, or that it has taken the boycott action at the request, in compliance with, or in furtherance of calls for a boycott of Israel, can be considered by the Arkansas Development Finance Authority as a type of evidence, among others, that a company is participating in a boycott of Israel.

Arkansas Act 710 is identical in scope and purpose to Florida Statute 215.4725.

Enter into the arena the Arkansas Times, which publishes several weekly newspapers. One of the entities that contracted for advertising in the Arkansas Times was the Pulaski Technical College (Pulaski Tech.) In 2017, Pulaski Tech became part of the University of Arkansas system. In 2018, when the contract for advertising between Pulaski Tech and the Arkansas Times ended, the University of Arkansas Board of Trustees asked the Arkansas Times to certify that it was not boycotting Israel or supporting a boycott of Israel in order to satisfy the requirements of Act 710.

The Arkansas Times refused claiming being forced to sign such a certification was a violation of the Fourteenth and First Amendment and sued the Board of Trustees. A district court ruled for the Board of Trustees. That was followed by an appeal to the Eighth Circuit Court of Appeals.

On February 12, 2021, the Eighth Circuit Court of Appeals ruled in favor of the Arkansas Times saying the law was unConstitutional.

The Court said, in part:

The First Amendment, made applicable to the states by the Fourteenth Amendment, prohibits the government from “abridging the freedom of speech.” U.S. Const. amend. I; see Gitlow v. New York, 268 U.S. 652, 666 (1925) (noting “freedom of speech . . . [is] among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States”). Under the unconstitutional conditions doctrine, “the Government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit.” Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 681 (1996) (cleaned up) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The doctrine “[r]ecogniz[es] that constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights.” Id. As a result, the government cannot, through funding conditions, indirectly impair the freedom of speech “which if directly attempted would be unconstitutional.” Speiser v. Randall, 357 U.S. 513, 518 (1958); see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 59–60 (2006).

Arkansas Times argues that the Act imposes an unconstitutional condition “by prohibiting government contractors from participating in politically-motivated consumer boycotts [of Israel].” The State does not contest that the Act imposes a condition on Arkansas Times as a government contractor. See Umbehr, 518 U.S. at 677 (applying unconstitutional conditions doctrine to independent government contractors who derive a financial benefit from contracting with the government). But it argues that the condition is permissible because boycotts of Israel, as defined by the Act, are not “inherently expressive” conduct subject to First Amendment protection.

In its challenge to the Act, Arkansas Times relies heavily on the Supreme Court’s ruling in N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982). In that case, the Court considered a boycott by Black citizens of White merchants in two Mississippi counties. Id. at 888. Boycott participants purchased goods and services exclusively from Black-owned stores but also used speeches, nonviolent picketing, and pamphleting to put economic pressure on White-owned businesses. Id. at 900–01, 907–09. The boycott’s “acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice,” in part by causing “the [boycotted] merchants [to] sustain economic injury as a result of their campaign.” Id. at 907, 914. Several of the merchants filed suit to recover losses caused by the boycott and to enjoin future boycott activity. Id. at 889.

The Supreme Court rejected the merchants’ claims and held, in relevant part, that the “nonviolent elements of [the boycott we]re entitled to the protection of the First Amendment.” Id. at 915. These nonviolent elements included “speech, assembly, association, and petition,” through which the boycotters “sought to change a social order.” Id. at 911–12. The boycotters’ goal was to influence governmental action, and it was foreseeable that the boycott would cause merchants economic harm. Even so, the Court held that “[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change.” Id. at 914; see Beverly Hills Foodland, Inc. v. United Food & Comm. Workers Union, Local 655, 39 F.3d 191, 197 (8th Cir. 1994). Arkansas Times asserts that a boycott of Israel is necessarily politically motivated and that any effort to restrict a government contractor’s ability to participate in such a boycott is, as a result, an unconstitutional condition.

In summary, the Eighth Circuit Court of Appeals ruled that the State of Arkansas could not punish people and companies for a legal, non-violent boycott of Israel.

That punishment is the same thing that the Florida Statute does. It punishes people and companies for legal speech and actions.

There are a couple of things to be noted here. First, we do not support any boycott of Israel or the BDS movement. As private citizens, we are allowed to do that and not support businesses that do engage in the boycott of Israel and the BDS movement. This post is not about boycotts, or Israel. This post is about the First Amendment and the rights of people.

Secondly, the State of Florida is not covered by the Eighth Circuit Court of Appeals. Florida is in the Eleventh Circuit Court of Appeals and therefore the ruling in this case is not binding upon the State of Florida.

However, what should be looked at here is the logic and reasoning of the Eighth Circuit.

The idea that Florida and Randy Fine seek to punish people for legal, non-violent protests is despicable on many levels.

It is almost is if they are more concerned with Israel rather than the rights of American citizens.

To us, that is the biggest issue – that we have legislators that are more concerned with another country that they are willing to step on, trample and grind into the mud the First Amendment rights of citizens.

Florida should obviously repeal FS 215.4725 but they won’t.

After all, as a legislator, who cares about the Bill of Rights and the rights of the people?



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