PHOENIX — Attorney General Mark Brnovich is defending a 2016 law designed to prevent public money from going to firms that boycott companies doing business with Israel.
In new filings in federal court, Brnovich is asking a federal judge to throw out the claim by Flagstaff attorney Mik Jordahl that the law violates his First Amendment rights.
In filing suit last month, Jordahl said he has a legal right to boycott companies that do business with Israel. He said his decision to exercise that right should not preclude him from providing legal advice, for a fee, to the Coconino County Jail District.
But Brnovich told the judge there is nothing wrong with forcing people to choose between getting paid with public dollars and boycotting a country that Arizona lawmakers have decided is entitled to special protections.
Ultimately it will be up to U.S. District Court Judge Diane Humetewa to decide. No date has been set for a hearing.
The dispute is over a state law designed to prevent public money from going to firms that support the so-called BDS movement — boycott, divest and sanction. That movement seeks to pressure Israel into changing its policies regarding Palestinians and, specifically, have the Jewish state withdraw from the West Bank.
Attorney Kathleen Brody of the American Civil Liberties Union said Jordahl won’t buy office equipment from Hewlett Packard, for example, because that company provides information-technology services used by Israeli security at checkpoints throughout the West Bank.
The problem, Brody said, is Jordahl is being asked, as a condition of getting an $18,000-a-year legal-services contract with Coconino County, to sign a certification that his firm is not and will not be involved in boycotts of Israel. Rather than sign, Jordahl sued to have the law overturned, contending it violates his First Amendment rights.
Brnovich argues those claims have no basis.
“The act does not prevent the plaintiff from saying anything,” his legal papers contend. He said Jordahl and others can “criticize Israel to their hearts’ content,” call for changes in U.S. policy, advocate for others to boycott Israel and “make abundantly clear that all business they do with Israelis is under the most vociferous protest.”
What the law does, Brnovich said, is regulate commercial conduct, something subject to lesser constitutional protections, and only on those seeking contracts with state and local governments.
“The state thus only denies a subsidy to those engaged in particular commercial conduct with which the state disagrees,” the attorney general said.
Anyway, Brnovich said, there’s nothing inherently wrong in Arizona enacting a law that says those who get public dollars should not be engaged in discrimination based on national origin.
However, this law is not that broad. The only boycotts that will trigger the loss of state contracts are those of Israel; firms getting state dollars remain free to boycott other countries and the companies doing business with them.
Brnovich said he doesn’t see a constitutional problem with that.
“No nation has been under attack more than Israel has and has had less help from any other country in the world as Israel has had,” he said in an interview. “I think the message the Legislature wanted to send was ‘we’re going to stand with Israel.’”
As far as he sees it, there’s no need for the Arizona law to treat all sides equally. “This is particularly true as the effect — and often goal — of BDS boycotts is to strengthen the hand of the Palestinian Authority at the expense of Israel,” Brnovich said. He contends the Palestinian Authority is a coalition government with the Palestine Liberation Organization, which Brnovich says pays cash stipends to the families of terrorists, and to Hamas, which is on the State Department’s list of terrorist organization.
“The state has compelling interests in avoiding commerce in the state and state funds being used to support such activities,” Brnovich said.