Arizona First Amendment Challenge to Anti-BDS Law Dismissed on Procedural Grounds

A change to state law keeps it from applying to the plaintiff, which makes the request for injunctive and declaratory relief moot.

|The Volokh Conspiracy |

From yesterday's nonprecedential opinion in Jordahl v. Brnovich:

In 2016 the Arizona Legislature enacted, and the Governor signed, House Bill 2617 ("the Act") which prohibited public entities from contracting with companies that engage in "boycott[s] of Israel." A certification that the contractor agreed not to boycott Israel was to be included in every contract with state or local governments. When it went into force, the Act applied to all manners of companies, from sole proprietorships to multinational corporations, and to contracts of any value.

Plaintiff-Appellee Mikkel Jordahl is the sole member and director of Mikkel (Mik) Jordahl, P.C. ("the Firm"), a law firm in Arizona. For the past twelve years, the Firm has maintained a series of contracts with the Coconino County Jail District, under which the Firm provides legal services to inmates. The contract is valued at approximately $18,000 annually. Jordahl engages in a personal boycott of Israel by refusing to purchase products from companies that he believes "perpetuat[e] the occupation of the West Bank," and wishes for his Firm to do so as well. When presented with a certification to not engage in a boycott of Israel as part of the contract renewal with Coconino County in 2016, Jordahl, on behalf of the Firm, signed under protest. In 2017, he refused to sign, and the Firm was not paid for services performed.

Jordahl filed suit …, arguing that the Act violated the First Amendment both on its face and as applied to him …. The district court granted Jordahl's motion for a preliminary injunction and enjoined the State from enforcing the certification requirement for public contracts.

The defendants appealed, and in 2019, while the appeal was pending, the State amended portions of the Act with Senate Bill 1167 ("the revised Act"). The revised Act made two key changes that exempt Jordahl and the Firm from the revised Act's provisions: The Act's anti-boycott certification requirement now applies only to (1) companies with ten or more full-time employees, and (2) contracts valued at $100,000 or more. These changes took effect in August 2019.

Because the Act no longer apples to Jordahl or his Firm, his claims for declaratory and injunctive relief are moot. See Bd. of Trs. of the Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1197 (9th Cir. 2019) (en banc). Accordingly, we vacate the preliminary injunction and remand the case to the district court with instructions to dismiss the claims for declaratory and injunctive relief. On remand the district court retains jurisdiction to determine whether an award of attorneys' fees is appropriate under 42 U.S.C. § 1988(b). See Watson v. County of Riverside, 300 F.3d 1092, 1094-95 (9th Cir. 2002); Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980) (per curiam).

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  1. How does the statute treat boycotts of Arizona?

  2. Kicking the can down the road

    1. FWIW I buy Prof Volokh’s argument that these anti-BDS laws are constitutional. Why should refusal to contract (more akin to conduct than speech) be based on national origin be any more protected than those based on race or religion alone?

      1. The problem, as I see it, is the anti-BDS laws that require would-be government contractors to SAY that they aren’t boycotting Israel.

        1. They just need to agree not to boycott Israel. They don’t need to say that they aren’t boycotting Israel.

          1. In the context of the the state’s requirements, how are you differentiating the impact of the words “agree” and “say?”

            —IANAL, Armchair or otherwise.

            1. Pollock appears to be implying that the contractors need to publically “say” something, which would imply a first amendment violation. ie, speech.

              As opposed to a contract, where they sign saying they won’t don’t something. They need say nothing in public, and can even say in public that they are boycotting Israel. But they’ve signed a piece of paper, a contract that they won’t actually do the boycott.

              It’s the difference between saying something and actually doing it.

              1. “Pollock appears to be implying that the contractors need to publically “say” something, which would imply a first amendment violation. ie, speech. ”

                They are required to affirm that they are not boycotting Israel. That’s what you call a “fact”, not an “assumption”. Turns out these are different things. You need to go back, leave your assumptions behind, and find out how it actually works, because when, as you have done here, you spout stupid misinformation, you just sound stupid and misinformed. was that your goal? If so, mission accomplished.

                1. Yes, the contractor must affirm in writing (which is speech) that they are not boycotting Israel. But, is that a First Amendment problem? Would a law which required someone to affirm in writing that they haven;t committed a felony violate the First Amendment? I don’t think so.

                2. I know, context between the two is difficult for you to understand. It’s your typical reading comprehension issues.

                  Let’s give you another example. You hate the draft. You rant against the draft, saying you oppose it in all its forms. That’s your right. The US can’t make you publically say otherwise.

                  But you still sign the selective service card, and affirm you’ve registered with the selective service on all those forms.

                  Get it?

                  1. Mission accomplished!

            2. All contracts have you “say” you agree to them.

      2. sam123, I think the constitutional question is much less clear cut. This is not a law that shuts out corporations that discriminate based on race, gender, sexual orientation or handicap, or some other protected class. Rather, this law is directed at contractors who wish to vote with their wallets on a specific political question — Is the State of Israel treating its neighbors badly. And I think there’s a much stronger case that throwing the State’s economic muscle behind a political question may violate the First Amendment.

        I see this as more comparable to the State saying it will not contract with anyone who doesn’t agree to refrain from boycotting abortion providers, or death penalty supporters, or proponents of single payer health care, or Democrats, or Republicans, or libertarians. Economic realities are that a certain amount of that is going to happen, but I think we should keep it to a minimum. I’m really uncomfortable with allowing the machinery of the state to put its collective thumb on the scale to influence the outcome of a political question.

  3. I don’t have any strong opinions either way on whether or not American businesses should be boycotting Israel.

    I can’t for the life of me, however, see why the US government, or any of its subentities, SHOULD take a position. It makes sense for me that a state might take a policy of supporting contractors who state a policy of “buy American first” or “buy American only” (since favoring their own state runs afoul of Constitutional limitations)
    I can see why a state might take a policy of “American first, or also foreign producers with MFN status”, because that affects pricing by eliminating punitive tariffs. Or “American or any of its military allies first”, because we stand or fall on the strength of our allies.

    But to single out one, but only one, of our allies for special non-boycott protection, doesn’t provide any obvious advantage to the state that passes such a law. So the question has to be, who is benefitting from this, and how are they passing benefits to legislators who support their interests? (with the followup of is there a conflict of interests between the people who elected the legislators, the legislators, and the people who benefit from legislation?”

    1. “Who is benefiting from this?”

      People who don’t like Nazis and other antisemites.

      1. The Jews who support a boycott, are you figuring they are nazis or anti-semites?

      2. The beneficiaries also include those with a taste for right-wing belligerence. The half-educated bigots, the superstitious clingers, the other culture war casualties.

    2. So the question has to be, who is benefitting from this, and how are they passing benefits to legislators who support their interests?

      This applies to all laws passed. 🙂

      1. “This applies to all laws passed.”

        It does, but not in the same way. If a legislature passes a bill that, say, people who make spammy phone-calls should be thrown in a dark hole and rubble piled on them until they stop doing it, the people rejoice and (ideally) they then vote for the politicians who passed the laws. If they pass a law that causes the city to widen the local street sufficiently to relieve traffic congestion, again, the people who benefit can reward the legislators responsible directly by voting for them. But when the people who benefit from a law CANNOT reward the legislators responsible, because, say, they are citizens of a foreign country, then you need to look at what OTHER rewards a legislator might be receiving.

  4. Voluntary cessation.

  5. The law firm should hire people to meet/exceed the 10 employee limit then start the suit again.

  6. Two separate and distinct issues
    1) should a government entity have the power to deny contracts due to prefered political preferences – Ban on anti Israel companies, Ban on companies that due business with the NRA – The short answer is No.
    2) the second issue making the lawsuit moot by amending the statute to prevent a court to rule on the merits – Similar to the Stunt pulled by NY & NYC to amend both statute law and the city ordinance making the 2A case moot. Nothing prevents NY or NYC to reinstate the previous statute and ordinance in the future. yet the stunt prevents the court from ruling on the merits

    1. Not doing business with a company that boycotts a nation is seen as falling under anti-discrimination power of the government. Policy wisdom is a separate issue.

      Refusing to deal with banks that handle NRA money has no such protection, and is indeed against the specific commandment by The People in the second amendment.

      1. “Not doing business with a company that boycotts a nation is seen as falling under anti-discrimination power of the government.”

        We are talking about an Arizona law. States have plenary power. There is no such thing as “anti-discrimination power of the government”. Arizona has the power to do anything that is not prohibited. States are not mandated to enact anti-discrimination laws.

        More importantly, there is no “anti-discrimination power of government” exception to the First Amendment. To the extent the 14A prohibits discrimination (by the state), it doesn’t empower the states to do anything. Section V doesn’t say “Arizona shall have the power to…” But even if it did, there’s nothing in the 14A about protecting Israel from boycotts.

        I can’t make sense of your second statement.

        1. The second statement is a reference to New York’s attempt in 2018 to run out the NRA by saying banks must not deal with the NRA. That is clearly illegal, and arguably a criminal offense by Cuomo.

          1. I don’t agree it is clearly illegal. New York is free to refuse to do business with people, unless it’s a protected class. I’m not aware of any case holding that the 2A or the 14A makes the NRA (of all people) a protected class. I don’t know what “specific commandment” Krayt had in mind.

            1. “New York is free to refuse to do business with people, unless it’s a protected class.”

              Not necessarily. It isn’t free to refuse to do business with people who express a particular viewpoint, or their associations with people who express a particular viewpoint. That is the issue in the NRA litigation, IIUC.

              1. Under the government speech doctrine the state is free to not do business with abortion clinic providers. For the anti-BDS, it’s refusing to do business with people who engage in BDS, which is a viewpoint. (I understand that this isn’t a 1A issue because prevailing law is, apparently, that boycotting is not speech for 1A purposes, but the distinction strikes me as rather thin.) If New York doesn’t want to purchase goods or services from, say, the KKK, I think they are (or should be) entitled to make that decision.

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