February 27, 2020

Federal Court Upholds Amended Arizona Anti-BDS Law

Photo from Pixabay.

A federal court upheld Arizona’s law cracking down on the boycott, divestment and sanctions (BDS) movement in a Jan. 6 ruling.

Arizona’s anti-BDS law, which was passed in 2016, requires businesses that conduct business with the state to sign a pledge against boycotting Israel. Mikkel Jordahl, whose law firm has a contract with the Coconino County Detention Facility in Flagstaff, refused to sign the pledge in 2017 and filed a lawsuit against the anti-BDS law, arguing that it violated his First Amendment rights.

In 2018, U.S. District Court of Arizona Judge Diane Humetewa issued an injunction against the law, ruling that it “unquestionably burdens the protected expression of companies wishing to engage in such a boycott.” The state appealed Humetewa’s ruling.

During the appeal, the law was amended in 2019 to only apply to businesses with at least 10 employees and contracts worth at least $100,000. Jordahl’s contract with the prison was worth $18,000, meaning he was no longer required to sign the pledge.

The Ninth Circuit Court of Appeals consequently ruled to vacate Humetewa’s injunction since Jordahl’s complaint was rendered moot.

Israeli-American Coalition for Action Executive Director Joseph Sabag, who spearheaded the initiative for the amended anti-BDS law, praised the Ninth Circuit ruling in a statement. “States like Arizona have created laws that carefully regulate commercial activity and not the conduct of private speech,” Sabag said. “Anti-BDS laws are narrowly tailored, anti-discrimination laws, similar to many other anti-discrimination laws that protect, among other categories of people, women, racial minorities and LGBTQ individuals.”

George Mason University constitutional and international law professor Eugene Kontorovich tweeted, “The argument, now defeated, that these laws were being struck down by courts was only a useful deflection for progressives that liked BDS but didn’t want to support it directly.”

Arizona Republican State Sen. Paul Boyer, who sponsored the amended law, said in a statement when the amended law was passed through the state legislature in April, “Arizona’s citizens not only stand with Israel because of the economic and practical benefits received, but as a matter of faith, principle, and as a point of American patriotism. Many people cared enough to take time away from work and engage their government on this issue.”

Arizona is one of 27 states to have passed an anti-BDS law. A federal judge threw out a challenge to an anti-BDS law in Arkansas in January 2019, concluding that commercial boycotts are not protected under the First Amendment. The ruling is currently under appeal.