Attorney General Mark Brnovich is defending a 2016 law designed to prevent public dollars from going to firms that engage in boycotts of companies that do business with Israel.
In new filings in federal court here, Brnovich said the bid by Flagstaff attorney Mik Jordahl tovoid the law is legally flawed. Among the reason is that Jordahl at the moment isn’t being prohibited from having a contract with the Coconino County Jail District because he doesn’t want to buy office equipment from Hewelett Packard because that company provides information technology services used by Israeli security at checkpoints throughout the West Bank.
But Brnovich said even if Jordahl were denied that $18,000 annual contract, Arizona lawmakers have a legal — and he contends moral — right to ensure that companies receiving public funds do not discriminate based on national origin, even if it’s only one nation that is getting that special protection.
The law specifically bars public agencies from entering into contracts with companies unless they provide written certification that they are not and will not engage in a boycott of Israel. But Brnovich said it’s justified, citing the so-called BDS movement — boycott, divest and sanctions — aimed at pressuring Israel to change its policies regarding Palestinians and specifically to have the Jewish state withdraw from the West Bank.
“Not only do I think this law is constitutional” Brnovich told Capitol Media Services.
“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 continued. “I think the message the Legislature wanted to send was we’re going to stand with Israel.”
The lawsuit filed last month says Jordahl is a non-Jewish member of Jewish Voices for Peace which endorses the BDS movement. Attorney Kathleen Brody of the American Civil Liberties Union said Jordahl personally boycotts consumer goods and services provided by businesses he believes support the occupation of the West Bank.
What’s at issue is that Jordahl is being asked to sign the certification that has law firm won’t get involved in any boycott of Israel as a condition of that county jail contract. Jordahl also wants his firm to be able to provide support for Jewish Voice for Peace and other boycott participants.
Brody said the 2016 law violates Jordahl’s First Amendment rights of expression and association. And then there’s that one-sided nature to it, allowing public contracts to go to those who participate in boycotts of other countries.
Brnovich, however, said he doesn’t see a problem with that.
“When you have a close ally of the United States, where you have a key trading partner to the state of Arizona that has been under, quite frankly, constant attacks since 1948, I think the state does have a role,” he said. “I think we do have a right to say, ‘We stand with Israel.’ ”
In his legal filings, Brnovich also argues to Judge Diane Humetewa that Jordahl’s First Amendment claims are misplaced.
“The act does not prevent the plaintiff from (ITALICS) saying (ROMAN) anything,” the 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 businesses 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 (ITALICS) subsidy (ROMAN) to those engaged in particular commercial conduct with which the state disagrees,” the attorney general argues. And he said the state has acted reasonably to prevent commerce from being used as an economic weapon against Israel.
“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, an organization he said is “far less democratic” than Israel. Then there’s the argument that the Palestinian Authority is a coalition government between the Palestine Liberation Organization which Brnovich says pays cash stipends to the families of terrorists, and 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.
No date has been set for a hearing.
The 2016 law was pushed through by David Gowan, who was House speaker at the time and waging what ultimately turned out to be an unsuccessful congressional bid.
Gowan said he wanted to use the economic strength of the state to undermine the BDS movement and its goal of getting people to boycott companies that do business with Israel to pressure that country to change its policies. Among the companies targeted, Gowan said, were Boeing and Caterpillar, firms that both have a presence in Arizona.
He called the movement “anti Semitic.” saying his legislation shows Arizona is supportive of Israel, “its strongest ally in the Middle East.”
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