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Court lifts ban on Arizona’s controversial anti-BDS law

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The Ninth Circuit Court of Appeals has lifted a ban on Arizona’s anti-BDS law. The decision effectively ends a lawsuit launched to challenge the law on First Amendment grounds.

In 2016, the Arizona Legislature passed HB 2617. The legislation (which was signed into law by Governor Doug Ducey) prohibited the state from investing or contracting with groups that boycott Israel. The law also established a blacklist of businesses that support the BDS movement. The legislation prompted a challenge from the American Civil Liberties Union (ACLU) on behalf of Mikkel Jordahl, the owner of a law firm that contracts with Coconino County Jail District to provide legal services for prisoners. He’s a supporter of BDS and the law required him to certify that his firm would not engage in the boycott.

In September 2018, Federal Judge Diane Humetewa blocked the state from enforcing the law because it seemingly violated the First Amendment. Humetewa’s decision concluded that the law “specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change’” and “that the goal of the Act is to penalize the efforts of those engaged in political boycotts of Israel and those doing business in Israeli-occupied territories because such boycotts are not aligned with the State’s values.”

Ducey amended the law in April 2019, so that it only applied to contractors with 10 or more employees and more than $100,000 in state business. Anti-BDS bills across the country have been modified in much the same way as a result of similar legal challenges. The Ninth Circuit Court of Appeals determined that Jordahl’s lawsuit was now moot because his firm is not impacted by the new version of the law. It’s not clear whether the ACLU will launch a new lawsuit targeting the current version of the law. Brian Hauss, an attorney with the group, said that they are currently considering next steps.

“You still have the right to boycott for Palestinian rights in Arizona and across the U.S.,” the group Palestine Legal told its followers on Facebook, “This ruling dismissed the case against Arizona’s anti-boycott law after an amendment made the law inapplicable to the man suing them. The court did not rule that the law is constitutional.”

The Arizona Legislature is currently being sued by two civil rights groups and a number of local individuals over secret meetings with the  American Legislative Exchange Council (ALEC), the infamous conservative group that pushes identical legislation in a number of states. One of those individuals is Arizona Palestinian Solidarity Alliance member Jameel Mazen. Mazen’s complaint contends that ALEC played a pivotal role in drafting the state’s anti-BDS legislation, which is almost exactly the same as anti-BDS bills pushed in other states.

Michael Arria

Michael Arria is the U.S. correspondent for Mondoweiss.

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6 Responses

  1. Misterioso on January 8, 2020, 9:22 am

    The First Amendment, as passed by the House and Senate and later ratified by the States, reads:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

  2. pabelmont on January 8, 2020, 10:16 am

    Thanks, Misterioso. Of course, no law is absolutely straightforward or without exceptions. First Amendment has been held not to protect speech such as yelling “Fire!” in a crowded theater (presumably unless there is actually a fire; it creates a direct and immediate unwarranted danger to the people in the theater; speech as action). OK, maybe the states would like to suggest that yelling “BDS!” in the public market place of ideas (i.e., criticizing the behavior, past and present, of the state of Israel) creates a danger, say the danger of inciting antisemitic acts. But if it does so, it is surely a rather indirect and non-immediate form of incitement. (Nothing like those regularly used by white-nationalists for example.)

    • spadepiccolo on January 8, 2020, 7:10 pm

      “First Amendment has been held not to protect speech such as yelling “Fire!” in a crowded theater (presumably unless there is actually a fire.”

      In fact the line you (and everybody) quote says “falsely cry fire in a theater” — nothing about it being crowded, either.

  3. dudu440 on January 8, 2020, 4:50 pm

    I don’t see the point of suing a state legislature for following ALEC’s lead. The content ALEC’s model bills is god-awful, of course, but what’s illegal about its MO? Wouldn’t it be great if we had such an institution on the left?

  4. Deist on January 8, 2020, 5:58 pm

    It’s sad to see US politicians from both parties being so deep in the pockets of the Israel lobby that they are willing to attack the US Constitution and Bill of Rights in order to please the Jewish state and its powerful and wealthy lobby. This is definitely an important part of the battle between Athens (wonder and reason) and Jerusalem (religion and superstition) https://www.deism.com/deismathensvjerusalem.htm

    • JWalters on January 8, 2020, 7:42 pm

      Sadly and infuriatingly true. It’s also the battle of morality versus money. It’s no wonder Israel disdains America, with so many members of Congress willing to sell out the Constitution they pledged to defend, willing to punish Americans for protesting Israel’s OBVIOUS crimes (!), willing to enforce Israel’s blacklist for a few bucks.

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