The American Civil Liberties Union filed a federal lawsuit Thursday arguing that an Arizona law requiring state contractors to certify that they won’t boycott Israel violates the First Amendment. The ACLU filed the case on behalf of an attorney and his one-person law office, which contracts with the government to provide legal services to incarcerated individuals.
The law, enacted in March 2016, requires that any company that contracts with the state submit a written certification that it is not currently boycotting Israel. The ACLU is also currently fighting a case filed in November against a similar law in Kansas.
The Supreme Court ruled decades ago that political boycotts are protected by the First Amendment, and other decisions have established that the government may not require individuals to sign a certification regarding their political expression in order to obtain employment, contracts, or other benefits.
“The First Amendment squarely protects the right to participate in political boycotts,” said ACLU attorney Brian Hauss. “The government cannot use its financial leverage over state contracts to prevent people from exercising their constitutional rights.”
The ACLU represents attorney Mikkel Jordahl, who has had a state contract to provide legal advice to inmates in Coconino County Jail for 12 years. Because of his political views, Jordahl refuses to purchase consumer goods and services offered by businesses supporting Israel’s occupation of the Palestinian territories. Jordahl wants to extend his boycott to his solely owned law firm, Mikkel (Mik) Jordahl P.C. He also wants to use his law firm to provide legal support to other organizations engaged in boycotts and related political expression, but the law’s certification requirement prevents state contractors such as Jordahl’s firm from participating in these activities.
Jordahl’s firm must renew its contract with the county every year. When he got the renewal paperwork in October 2016, it included an extra form that he had to sign to certify that the firm “is not currently engaged in a boycott of Israel.” Jordahl signed it under protest, and has made sure to separate his personal boycott from his firm’s activities. Now, in order to renew his contract, Jordahl has again been asked to sign the certification. If he agrees, Jordahl will have to limit his boycott participation. If he refuses, he will put a great deal of his income at risk.
“Whatever your stance on the boycott issue, everyone has a right to express their opinions on it and act accordingly,” said Jordahl. “The state has no right to tell private companies how to act when it has nothing to do with state business.”
The Arizona law is similar to legislation that has been passed in other states. The ACLU does not take a position on boycotts of foreign countries, but the organization has long supported the right to participate in political boycotts and has voiced opposition to bills that infringe on this important First Amendment right.
This lawsuit argues that the Arizona law violates the First Amendment for several reasons: it compels speech regarding protected political beliefs, associations, and expression; restricts the political expression and association of government contractors; and discriminates against protected expression based on its content and viewpoint. The lawsuit asks the court to strike down the law and bar state officials from requiring contractors to certify that they are not participating in boycotts of Israel.
In the lawsuit challenging the Kansas law, the ACLU represents a high school curriculum coach who cannot take part in a state program to train other teachers because she refuses to sign an anti-boycott certification. The state has thus far failed to address the First Amendment issues raised by the lawsuit, which is pending.
In July, the ACLU sent a letter to members of Congress opposing a bill that would make it a felony to support certain boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories. As a result, Senate sponsors of the bill are considering changes.