Laws Targeting Israel Boycotts Fail Again in Court

A new wave of state laws that try to limit Americans’ constitutional right to engage in political boycotts is now 0 for 2 in federal court.

On Thursday night, a federal court blocked Arizona from enforcing a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court agreed with the ACLU that the law likely violates 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 her decision issuing a preliminary injunction against the law.

This is the second federal court to consider this type of boycott ban, and they both came to the same conclusion. Earlier this year, the ACLU successfully blocked a remarkably similar law in Kansas. In that case, the court held that the First Amendment protects citizens’ right to “band together” and “express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens.”

We filed the Arizona lawsuit on behalf of Mikkel Jordahl, an attorney who has contracted with the state for the last 12 years to provide legal services on behalf of incarcerated individuals at the Coconino County Jail. Jordahl opposes Israel’s settlement expansion in Palestinian territories and what he considers Israel’s unwillingness to ensure the rights of Palestinians under its rule.

As a supporter of boycott campaigns targeting Israel, he refuses to purchase goods and services offered by companies operating in Israeli settlements in the occupied Palestinian territories. He wants to extend the boycott to his one-person law firm and to provide legal support to other boycott activists.

But Arizona’s law, enacted in August 2016, forbids state contractors from engaging in those activities. Last year, when Jordahl was asked to sign the no-boycott certification in order to renew his contract with Coconino County, he refused.

As the court in our case recognized, Arizona’s law directly violates state contractors’ First Amendment right to participate in collective efforts to advocate for social change. The right to participate in political boycotts was clearly established by the Supreme Court in NAACP v. Claiborne Hardware, a 1982 decision holding that the First Amendment protected an NAACP-organized boycott of white-owned businesses in Mississippi to protest ongoing racial segregation and inequality.

Quoting the Supreme Court, Judge Humetewa wrote, “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 Kansas and Arizona decisions send a clear message: The First Amendment right to boycott is alive and well. But our work is far from over. Similar contract requirements are on the books in GeorgiaArkansasMinnesotaTexasOhioAlabamaPennsylvaniaMichiganNevadaSouth CarolinaRhode IslandFloridaMaryland, and Wisconsin. All of these laws violate the First Amendment. The hard work of repealing them should be taken up by state legislators who still value our constitutional freedoms.

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SgrA*

"As a supporter of boycott campaigns targeting Israel, he refuses to purchase goods and services offered by companies operating in Israeli settlements in the occupied Palestinian territories."

Cue insults and execrations about antisemitism by sensitive folks who want to disenfranchise the Palestinian people living on territories formally "their God given land." Boy, just wonder if the First Peoples started taking back their God given land now called America; but Israel annexed their land by war -- just like every other colonial land conquered.

Anonymous

Who knew that Georgia, Alabama, South Carolina, Arkansas, Florida and Texas are so enlightened that they appreciate Jewish hegemony, since these states mostly likely had property contracts, golf club policies, and cemetery restrictions against Jews' participation. But then again, the darker complexion of Palestinians probably had some influence on these states' judicial preference.

Anonymous

LOL apparently discrimination against jews is all of a sudden protected speech by the ACLU. Shame.

Anonymous

Not all Jews support the Israeli apartheid or occupation.
So boycotting Israel has nothing to do with boycotting Jews.
Any more than boycotting Disney for providing benefits for the same-gender spouses of employees was boycotting gay people.

Lee

These boycotts have nothing to do with anti-Semitism, they have to do with Israeli, not Jewish, policies and treatment of the Palestinians. If Israel left the occupied territories, stopped the unnecessary use of deadly force and seriously entered into negotiations with the Palestinians, these boycotts would end.

JohnH

Smearing Jews as universally and uniformly supporters of a belligerent, colonial, ethno-state is disgustingly antisemitic. These rulings have nothing at all to do with the treatment of Jewish-owned businesses or customers, they are about participation in a boycott opposing what the boycotters see as the inhumane treatment of an entire ethnic group.

Dov Baer

Since you support the age old racist boycott of Jews, maybe you can help the Klan target African American businesses. A shame the ACLU supports rank bigotry. You are not progressive, you are reactionary.

JohnH

Insisting that all Jews support colonial wars and the mass murder/imprisonment of an ethnic group - which is what you do when you equate specific actions taken by Israel with Jews generally - is itself deeply antisemitic. Please stop.

Dr. Timothy Leary

The ACLU has censored my previous comment here. Believe it or not, the offending word was "knish".

Anonymous

don't forget about New York State. Cuomo signed a similarly discriminatory antiBDS executive order - just because it's not a law passed by the legislature doesn't mean it can't be a violation of our rights!

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