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.