States can’t punish businesses for boycotting Israel, federal judge in Arizona
When his contract came up for renewal in 2017, after his trip with his son, he refused to sign the certification, instead challenging it in court.
“I continue to view it as a violation of my First Amendment rights, and I have spent the last year experiencing its chilling effects,” he wrote in a declaration for the court.
The certification requirement “compels speech” by requiring state contractors to sign a certification or lose income, the ACLU argued, while preventing corporate entities from “promoting protected political boycotts.” It also “chills individual expression and association,” the ACLU maintained, given the fine line between vocal individual advocacy and the posture of one’s company.
“Although Mr. Jordahl does not understand the certification to apply to his personal activities, he reasonably fears that vocal advocacy about his personal boycott participation would lead to suspicion about whether his Firm is complying with the certification,” the complaint states.
The state moved to dismiss the claim, reasoning that the law did not infringe on Jordahl’s expression in a “personal capacity” but rather reflected the state’s interest in regulating commercial activity to prevent discrimination based on national origin. The state said it was concerned about the use of boycotts as “economic warfare” against Israel.
“Arizona must have the ability to set rules for its own government contractors and ensure they are not undermining state policies or engaging in discrimination,” argued Mark Brnovich, Arizona’s attorney general.
Although the BDS movement sees itself in the tradition of the civil rights movement, there is an opposing line of thinking that welcomes state regulation of the kind once enforced in Arizona as parallel to government prohibitions on racial discrimination among private entities, such as restaurants and hotels.
“Specifically, some commenters have likened a possible restriction on discrimination against Israel-affiliated entities to other constitutionally permissible legislative prohibitions on discrimination, such as government restrictions against race-based discrimination by private entities,” as a 2017 Congressional Research Service report stated. At the same time, affiliation with Israel is questionably analogous to characteristics such as race, religion and sex.
Jordahl argues that state regulation takes what should be a subject of vigorous civic debate and turns it into an opportunity for the state to enforce its own political agenda.
“Rational minds can disagree on whether the movement to boycott the occupation is effective or even appropriate. But do our Arizona legislators need to chip away at our First Amendment rights to express our opinions on this issue?” he wrote in the Arizona Daily Star. “By this logic, what would limit Arizona’s Legislature from deciding they won’t do business with people and companies that support a boycott of Trump family businesses, or tobacco companies, or even the Democratic Party?”
The state has asked for a stay of the ruling pending appeal. A spokesman for the attorney general told the Arizona Republic, “We’re disappointed that the judge did not recognize that taxpayer dollars have no place supporting government contractors who engage in anti-Semitic behavior.”
When his contract came up for renewal in 2017, after his trip with his son, he refused to sign the certification, instead challenging it in court.
“I continue to view it as a violation of my First Amendment rights, and I have spent the last year experiencing its chilling effects,” he wrote in a declaration for the court.
The certification requirement “compels speech” by requiring state contractors to sign a certification or lose income, the ACLU argued, while preventing corporate entities from “promoting protected political boycotts.” It also “chills individual expression and association,” the ACLU maintained, given the fine line between vocal individual advocacy and the posture of one’s company.
“Although Mr. Jordahl does not understand the certification to apply to his personal activities, he reasonably fears that vocal advocacy about his personal boycott participation would lead to suspicion about whether his Firm is complying with the certification,” the complaint states.
The state moved to dismiss the claim, reasoning that the law did not infringe on Jordahl’s expression in a “personal capacity” but rather reflected the state’s interest in regulating commercial activity to prevent discrimination based on national origin. The state said it was concerned about the use of boycotts as “economic warfare” against Israel.
“Arizona must have the ability to set rules for its own government contractors and ensure they are not undermining state policies or engaging in discrimination,” argued Mark Brnovich, Arizona’s attorney general.
Although the BDS movement sees itself in the tradition of the civil rights movement, there is an opposing line of thinking that welcomes state regulation of the kind once enforced in Arizona as parallel to government prohibitions on racial discrimination among private entities, such as restaurants and hotels.
“Specifically, some commenters have likened a possible restriction on discrimination against Israel-affiliated entities to other constitutionally permissible legislative prohibitions on discrimination, such as government restrictions against race-based discrimination by private entities,” as a 2017 Congressional Research Service report stated. At the same time, affiliation with Israel is questionably analogous to characteristics such as race, religion and sex.
Jordahl argues that state regulation takes what should be a subject of vigorous civic debate and turns it into an opportunity for the state to enforce its own political agenda.
“Rational minds can disagree on whether the movement to boycott the occupation is effective or even appropriate. But do our Arizona legislators need to chip away at our First Amendment rights to express our opinions on this issue?” he wrote in the Arizona Daily Star. “By this logic, what would limit Arizona’s Legislature from deciding they won’t do business with people and companies that support a boycott of Trump family businesses, or tobacco companies, or even the Democratic Party?”
The state has asked for a stay of the ruling pending appeal. A spokesman for the attorney general told the Arizona Republic, “We’re disappointed that the judge did not recognize that taxpayer dollars have no place supporting government contractors who engage in anti-Semitic behavior.”
