Federal Court in Arizona blocks anti-BDS law targeting Israel critics

Justice Humetewa issued an injunction that suspends the law. She declared that not only does Jordahl have a case to proceed against the state and the Arizona Attorney General but that he is likely to succeed in that lawsuit.

The Arizona anti-BDS Law illegally declares: “A. A public entity may not 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 company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel. B. A public entity may not adopt a procurement, investment or other policy that has the effect of inducing or requiring a person or company to boycott Israel.”

Humetewa, who is Native American, is the second judge to challenge the unconstitutionality of the anti-BDS legislation that has been adopted in a slew of states targeted by Israel’s lobby through local pro-Israel attorneys. A similar ruling blocked the implementation of the anti-BDS laws in Kansas in January 2018.

In the lawsuit against the Kansas BDS laws, public schools educator Esther Koontz argued she was unlawfully denied a state contract to train teachers because she refused to sign an affidavit stating that she does not participate in a boycott of Israel. Signing an affidavit is the primary requirement under all of the anti-BDS laws. A lawsuit was filed by the ACLU on behalf of Koontz. Kansas Federal U.S. District Judge  Daniel Crabtree issued a similar injunction suspending the law, also arguing the plaintiff (Koontz) has a high likelihood of winning her lawsuit against the state.

Jordahl, who has a contract with an Azirona company, filed the lawsuit last year claiming it violated his civil rights.

“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” U.S. District Court Judge Diane J. Humetewa wrote in today’s order blocking the law. “The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change.’”

In rejecting attempts to dismiss Jordahl’s lawsuit, Justice Humetewa concluded, “Defendants’ motion to dismiss Plaintiffs’ Amended Complaint is denied, including their request to dismiss the Attorney General from this action. Moreover, Plaintiffs have shown that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm in the absence of a preliminary injunction, and that the balance of equities and public interest favor an injunction. The Court, therefore, will grant Plaintiffs’ request for a preliminary injunction and enjoin Defendants from enforcing the Certification Requirement in A.R.S. § 35-393.01(A).”

Jordahl initially signed the waiver in 2016 after the law was passed and state contractors were ordered to sign or lose their contracts. But after reading the law, Jordahl refused to sign in 2017 and filed the lawsuit against the law.

The judge’s ruling makes it near impossible for the sponsors of the law to reinstate it over the judge’s legal injunction.

Humetewa’s ruling and the Kansas ruling have established precedents for similar lawsuits now to be filed against 16 other U.S. State governments that have adopted the law including in Illinois where it was sponsored by two anti-peace pro-Israel legislators State Rep. Sara Feigenholtz and State Senator Ira Silverstein, both Democrats. The Illinois law was by Republican Governor Bruce Rauner in 2015. (Click to read stories.)

The first anti-BDS law was adopted by Tennessee in April 2015. Sponsors often introduced the legislation with the backing of leaders of the Democratic Party, exposing the lies and hypocrisy of claims by Democrats that they support Palestinian rights, peace and the two-State solution. In most instances, the laws were also approved without much discussion or reporting by the mainstream news media, or just cursory coverage.

Since the Tennessee law was adopted, a total of 25 states have passed anti-BDS laws violating the Constitutional rights of Americans to criticize foreign governments like Israel. Other states include: South Carolina (June 2015), Illinois (July 2015), Alabama (February 2016), Colorado (February 2016), Indiana (March 2016), Florida (March 2016), Virginia (March 2016), Arizona (March 2016), Georgia (April 2016), Iowa (May 2016), New York (June 2016), New Jersey (August 2016), California Sept. 2016), Pennsylvania (November 2016), Ohio (December 2016), Michigan (January 2017), Texas (May 2017), Minnesota (May 2017), Nevada (2017), Kansas June 2017), North Carolina (July 2017), Maryland (October 2017), Wisconsin (October 2017), and Louisiana (May 2018).

An effort is also underway to approve Federal anti-BDS legislation to apply to all of the nation’s 50 American states and territories.

Click here to read the judge’s complete decision.

Here is the press release from the ACLU:

A federal court today blocked an Arizona law that requires state contractors to certify that they will not boycott Israel, finding that the law likely violates state contractors’ free speech rights under the First Amendment.

“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” U.S. District Court Judge Diane J. Humetewa wrote in today’s order blocking the law. “The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change.’”

The law, enacted in March 2016, requires that any company that contracts with state or local government in Arizona submit a written certification that it is not currently boycotting Israel and will not do so. The Arizona law is similar to legislation passed in other states. Earlier this year, a federal court blocked a comparable Kansas law, which the Kansas Legislature subsequently amended.

The ACLU filed a case challenging the Arizona law on behalf of an attorney, Mikkel Jordahl, and his one-person law office, which contracts with the government to provide legal services to incarcerated individuals. Jordahl has had a state contract to provide legal advice to inmates in Coconino County Jail for 12 years.

“Boycotts are an important way for people to collectively call for social change and this peaceful form of protest has long been protected by the Constitution,” Jordahl said. “No matter where you stand on the issue of Israel and Palestine, it should be clear that we as individuals have a right to engage in peaceful individual boycotts and a right to not spend our money in the way we choose.”

Because of his political views, Jordahl refuses to purchase consumer goods and services offered by businesses supporting Israel’s occupation of the Palestinian territories. Jordahl intends to extend his boycott to his solely owned law firm, Mikkel (Mik) Jordahl P.C. He also wants to use his law firm to provide legal support to other organizations engaged in boycotts and related political expression, but the law’s certification requirement prevents state contractors such as Jordahl’s firm from participating in these activities.

The Supreme Court ruled decades ago that political boycotts are protected by the First Amendment, and other decisions have established that the government may not require individuals to sign a certification regarding their political expression in order to obtain employment, contracts, or other benefits.

“Political boycotts are a constitutionally protected form of non-violent protest,” said Kathy Brody, ACLU of Arizona legal director. “Today’s ruling supports the notion that the government has no business telling people—even people who contract with the state—what causes they can or can’t support.”

The ACLU does not take a position on boycotts of foreign countries, but the organization has long supported the right to participate in political boycotts and has voiced opposition to bills that infringe on this important First Amendment right.

“Today’s decision sends a strong message to legislators in every state,” said ACLU attorney Brian Hauss. “The right to boycott is alive and well in the United States and state governments should not be trying to use their financial leverage over state contractors to inhibit free speech.”

(Ray Hanania is an award-winning Palestinian American former Chicago City Hall reporter and political columnist. He is a syndicated columnist with the Arab News (www.ArabNews.com) and regional political opinion columnist for the Southwest News Newspaper group of eight newspapers. Reach him on his personal website at www.Hanania.com or by email at rghanania@gmail.com.)