Judge bars Arizona from enforcing law that tells contracted companies not to boycott Israel

PHOENIX — A federal judge blocked Arizona from enforcing a law that denies state and local government contracts to firms unless they agree not to boycott Israel or companies that operate there.

In a ruling late Thursday, Judge Diane Humetewa said the law interferes with First Amendment rights.

Humetewa rejected arguments by Arizona Attorney General Mark Brnovich that lawmakers have a legal, and even moral, right to prevent public dollars from going to individuals and companies who try to pressure the Israeli government through economic means.

She said the state cannot use its economic power to deny people their right to speak out and act on their personal beliefs.

Thursday’s ruling is not the last word.

While enjoining enforcement of the 2016 law, Humetewa gave Brnovich the opportunity to persuade her that the 2016 law has a legitimate and legal purpose.

But the judge, in a 36-page ruling, said everything she has seen to this point, including Brnovich’s arguments, convinces her the law is unconstitutional and that it will ultimately be permanently struck down. In the meantime, Humetewa said, she cannot allow the state to enforce the law.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the judge wrote.

Brnovich spokesman Ryan Anderson responded: “We’re obviously disappointed the judge didn’t recognize that the state has a legitimate interest in prohibiting anti-Semitism in state contracting. We plan to appeal the decision, not just because we think we’re legally right, but it’s morally the right thing to do as well.”

In her ruling, Humetewa saw the state’s argument as seeking to bar discrimination based on national origin. But she said Arizona “clearly has less intrusive and more viewpoint-neutral means to combat such discrimination” than denying public contracts with those who disagree.

The law spells out that public agencies cannot enter into contracts with any company unless the deal includes “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.”

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David Gowan, House speaker at the time, said he wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement.

The idea behind the movement is to get people to boycott companies that do business with Israel. That, in turn, is designed to pressure that country to change its policies, including settlements on the West Bank.

Gowan called that movement “anti-Semitic,” and said his legislation shows Arizona is supportive of Israel, “its strongest ally in the Middle East.”

The American Civil Liberties Union filed suit against Arizona last year on behalf of Mik Jordahl, a Flagstaff attorney who has been doing legal work for the Coconino County Jail District worth more than $18,000 a year.

Jordahl, according to the lawsuit, also is a non-Jewish member of Jewish Voice for Peace, which endorses the movement to protest the actions of the Israeli government “including the occupation of Palestinian territories.”

He signed the certification the first time two years ago on behalf of his law firm. But when asked to sign again last year, Jordahl balked and challenged the law.

“The First Amendment protects political association as well as political expression,” Humetewa wrote.

“At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence,” the judge wrote, quoting prior U.S. Supreme Court rulings. “Indeed, if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matter of opinion or force citizens to confess by work or act their faith therein.”

All that, she said, applies to boycotts.

“Collective boycotting activities undertaken to achieve social, political or economic ends is conduct that is protected by the First Amendment,” Humetewa wrote.