Arizona’s amended anti-boycott law still constitutionally flawed

Credit: Sainatee Suarez

Credit: Sainatee Suarez

Months after a federal court blocked Arizona from enforcing its anti-boycott law saying it was unconstitutional, the state has attempted to revive the law by amending it so that it no longer applies to the man who challenged it.

On Tuesday, Arizona Governor Doug Ducey signed SB 1167 amending the state’s 2016 anti-boycott law prohibiting state contractors from supporting boycotts of Israel. This was despite significant opposition to the amendment in the Arizona House, where it passed 37-21 with vigorous debate.

Only companies with more than 10 employees and contracts above $100,000 will now be required to certify in writing that they are not and will not engage in boycotts of goods or services from Israel or territories controlled by Israel.

In 2017, the ACLU filed a lawsuit against the state on behalf of Arizonan attorney Mikkel Jordahl and his sole practitioner law firm arguing that the 2016 law violates core First Amendment rights.

In September 2018, a federal judge blocked enforcement of the state’s anti-boycott law, finding that the law “unquestionably burdens the protected expression of companies wishing to engage in such a boycott.” Arizona has asked the Ninth Circuit Court of Appeals to reverse the decision.

Palestine Legal and the Center for Constitutional Rights submitted a friend-of-the-court brief to the Ninth Circuit in January 2019. The appeals court was set to hear arguments in June.

Arizona’s new amendments mean that the law will no longer apply to Jordahl, whose solo firm contracts with the state to provide legal services to indigent defendants. The state is expected to argue that the court should throw out the ACLU’s lawsuit since Jordahl will no longer be personally impacted by the law.

 While the changes may reduce the number of individuals affected by the law, it will not resolve the underlying constitutional issues.

“Policing the political viewpoints and activities of state contractors is a violation of the First Amendment when these views and activities are unrelated to the work the contractor is doing,” said Palestine Legal staff attorney Zoha Khalili. “This is true regardless of whether the contractor is an individual or a large corporation. The new law still uses the state’s economic leverage to suppress expressions of support for Palestinian rights.”

Arizona is one of 27 states that have passed anti-boycott laws. In narrowing its law to skirt a legal challenge, Arizona is following Kansas’ example, and Texas has already introduced similar amendments to its law in the face of several challenges. As the ACLU said, states like Arizona are “running scared” from defending anti-free speech laws in court. These laws will continue to be challenged because they have the same constitutional pitfalls.

And as Jordahl, the plaintiff in the Arizona case, explained, “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. 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.”

This week, Palestine Legal filed a friend-of-the-court brief in the Eighth Circuit Court of Appeals with the Center for Constitutional Rights and the Law Office of Matthew Strugar in support of a lawsuit seeking to strike down an Arkansas law that requires government contractors to pledge not to boycott Israel.

View more about state and federal anti-boycott legislation at righttoboycott.org.

Rights Groups Urge Court to Overturn Decision on Arkansas Anti-Boycott Law

Screenshot from  VICE News   documentary

Screenshot from VICE News documentary

April 16, 2019 – Today, the Center for Constitutional Rights, Palestine Legal, and the Law Office of Matthew Strugar filed a friend-of-the-court brief in the Eighth Circuit Court of Appeals in support of a lawsuit seeking to strike down an Arkansas law that requires government contractors to pledge not to boycott Israel. The lawsuit and the amicus brief in support of it argue that the law violates the First Amendment. The filing situates the Arkansas law as part of a broader effort to suppress speech in support of Palestinian human rights.

“Arkansas can’t suppress boycotts for Palestinian rights just because the government disagrees with the message that Palestinians deserve freedom and equality,” said Palestine Legal Senior Staff Attorney Radhika Sainath. “The Court of Appeals has an opportunity to fix this and ensure that there is no First Amendment exception when it comes to Palestine.”

The American Civil Liberties Union filed the lawsuit on behalf of The Arkansas Times, which lost substantial ad revenue after its publisher refused to sign the no-boycott pledge on the principle that contractors should not be compelled to speak against boycotts, divestments, and sanctions (BDS) for Palestinian rights, even though the newspaper itself takes no position on BDS.

A U.S. district court judge dismissed the ACLU’s lawsuit in January, deviating from two other courts that enjoined similar laws in Arizona and Kansas because boycotts for Palestinian rights are protected by the First Amendment, just as the Supreme Court recognized in the landmark NAACP v. Claiborne Hardware with regard to peaceful civil rights boycotts of white businesses in Mississippi. In its appeal, the ACLU argued that the district court’s decision, if allowed to stand, would set a dangerous precedent by allowing state legislatures to punish disfavored viewpoints.

“Anti-BDS laws are just another desperate attempt to suppress demands for equality for Palestinians,” said Center for Constitutional Rights Deputy Legal Director Maria LaHood. “They not only violate the Constitution, they are also on the wrong side of history.”   

The amicus brief provides context for the court, making clear that Arkansas’ anti-boycott law and similar measures in 26 other states are part of a broader nationwide effort by Israel advocacy groups to suppress speech in support of Palestinian rights. Palestine Legal and the Center for Constitutional Rights have documented censorship efforts on college campuses, against public libraries, and at other institutions. Advocates for Palestinian human rights have lost jobs and incomes and faced harassment for their advocacy. The clear intent of the legislation and other censorship efforts is to silence viewpoints in support of Palestinian rights.

Read the Center for Constitutional Rights and Palestine Legal’s amicus brief filed today here.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, The Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.

Palestine Legal protects the civil and constitutional rights of people in the U.S. who speak out for Palestinian freedom.

The Law Office of Matthew Strugar is a First Amendment and protesters’ rights law firm based in Los Angeles, California. Learn more at matthewstrugar.com.

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