The Madison-Rafah Sister City Project

States can’t punish businesses for boycotting Israel, federal judge in Arizona says

Palestinians walk past a sign painted on a wall in Bethlehem, in the West Bank, in 2015 that calls for a boycott of products coming from the Israeli settlements. (Thomas Coex/Agence France-Presse)

Isaac Stanley-Becker, The Washington Post, October 1, 2018

Mikkel Jordahl, a lawyer in Sedona, Ariz., can now choose to buy a different brand of printers.

No longer must he stick with Hewlett-Packard technology for fear of losing his contract with the state. For 12 years, he has provided legal advice to inmates in the Coconino County Detention Facility.

In his personal life, he avoids companies he considers complicit in Israel’s occupation of the Palestinian territories. His aim had been to extend his boycott to his one-person law office — for instance, refusing to purchase from Hewlett-Packard because its information technology services are used at Israeli checkpoints in the West Bank.

In his professional life, however, he was bound by a law, enacted by the Arizona legislature in 2016, requiring any business that has a state contract to certify that it was not boycotting Israel. He challenged the directive in court, claiming that it violated his First Amendment rights.

A federal judge in Arizona found merit in his complaint. U.S. District Judge Diane Humetewa issued an injunction last week, blocking enforcement of the measure, which compels any business contracting with the state to submit a written pledge that it was not involved in boycott activity targeting Israel.

At issue in the case is the specific obligation imposed in Arizona, but the ruling cast doubt on the constitutionality of broader government efforts to regulate boycott activity by private companies, even those that do business with the state.

“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,” Humetewa wrote in her opinion in Jordahl et al v. Brnovich et al.

The finding was the second this year to turn back a wave of state legislation using public money to deter anti-Israel activity. It is in line with a similar judgment in January, when a federal judge in Kansas ruled for the first time that enforcing a state provision requiring contractors to sign a no-boycott certification violated expressive rights guaranteed under the First Amendment. Similar provisions are on the books in more than a dozen states, including Maryland, Minnesota and South Carolina, according to the American Civil Liberties Union.

The ACLU challenged the legislation in both cases. Its success in protecting boycott activity in the courts is notable, as a bipartisan group of lawmakers pushes for federal legislation penalizing cooperation with boycotts sponsored by international governmental organizations. Even after modifications made by the bill’s Senate sponsors — Benjamin L. Cardin (D-Md.) and Rob Portman (R-Ohio) — the civil-liberties group argues that the measure would be unconstitutional.

The boycott issue took on new gravity this year as the Trump administration moved the U.S. Embassy to the contested city of Jerusalem, and as violence flared in Gaza. A central outlet for opposition to the Israeli state has been the movement known as BDS, for boycott, divestment and sanctions. It seeks the end of Israeli occupation of “all Arab lands,” the full equality of Arab-Palestinian citizens of Israel, and the “rights of Palestinian refugees to return to their homes and properties as stipulated in U.N. Resolution 194.”

The movement is contentious, and a range of legislation worldwide — some symbolic — has aimed to clip its wings. A particular flash point has been academic boycotts of Israeli universities, raising questions about free expression and open intellectual exchange.

Measures affecting boycott activity must not interfere with expressive rights, American courts have increasingly found.

The Arizona statute endangered “the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change,’ ” wrote the Arizona judge, quoting the Supreme Court’s landmark 1982 decision in NAACP v. Claiborne Hardware Co., which upheld the right to engage in political boycotts.

The judgment will allow Jordahl to make the same sort of consumer choices that he exercises as an individual when operating his law firm.

The lawyer comes from three generations of Lutheran ministers. His parents lived in the occupied West Bank for a year in 1977, and Jordahl joined them in the territory for three months, according to the ACLU’s complaint.

“Both Mr. Jordahl and his parents were profoundly affected by what they saw in the occupied Palestinian territories,” the complaint states. “Upon his return to the United States, Mr. Jordahl established the Oberlin College chapter of the Palestine Human Rights Campaign. He has continued to be involved in various human rights aspects of the Israeli-Palestinian conflict.”

Jordahl raised his son Jewish, and after his son’s bar mitzvah, took him on a trip last year to Israel and Palestine — an experience that reinforced his belief that the settlements were an impediment to peace. He has been inspired by the Evangelical Lutheran Church in America’s “Peace not Walls” campaign, which calls on people to invest in Palestinian products and to “utilize selective purchasing to avoid buying products” made in Israeli settlements. He also counts himself a non-Jewish member of Jewish Voice for Peace, a national organization that endorses the BDS movement.

So as not to jeopardize his contract, however, he signed the certification in 2016 attesting that he was “not currently engaged in a boycott of Israel,” defined by the state law as “engaging in a refusal to deal, terminating business activities, or performing other actions that are intended to limit commercial relations with Israel or with persons or entities doing business in Israel or in territories controlled by Israel.” At the same time, he sent a letter to the county’s deputy attorney saying he believed the requirement violated his rights under the First Amendment.

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.”