ACLU Sues Arizona Over Law That Targets BDS Supporters Who Back Israel Boycott

Civil liberties union says treatment of lawyer Mikkel Jordahl over his decision to boycott firms supporting Israel in the occupied territories is a violation of his First Amendment rights

File photo: Palestinian and Jewish groups supporting the Palestinian cause walk from Times Square to the United Nations Building during a rally on September 15, 2011 in New York.
File photo: Palestinian and Jewish groups supporting the Palestinian cause walk from Times Square to the United Nations Building during a rally on September 15, 2011 in New York. David Karp / AP

The American Civil Liberties Union filed a federal lawsuit against Arizona on Thursday, on behalf of a lawyer who boycotts businesses that support Israel's occupation of the West Bank.  

Mikkel Jordahl had been providing legal advice to inmates in an Arizona jail for the past 12 years, but says his state contract to perform these services to Coconino County prisoners was recently compromised because of his political views.

Jordahl wants to use his firm to provide legal support to other organizations engaged in boycotts and related political expression. The ACLU says Arizona is violating his First Amendment rights.

“Whatever your stance on the boycott issue, everyone has a right to express their opinions on it and act accordingly,” Jordahl said in a statement released by the ACLU.

“The state has no right to tell private companies how to act when it has nothing to do with state business.”

Arizona is one of 23 states in the United States that have enacted laws or executive orders targeting boycotts of Israel. Other states include California, Colorado, Florida, Kansas, Maryland and New York.

Arizona's law, passed in March 2016, requires that any company that contracts with the state submit a written certification that it is not currently boycotting Israel.

ACLU lawyer Brian Hauss told Haaretz he is seeing a trend in these bills and executive orders, some placed as recently as October 2017. According to Hauss, many of the bills are almost identical, presumably pushed by the same source, and the ACLU is expecting more in the pipeline.

According to the Foundation for Middle East Peace, opponents of the boycott, divestment and sanctions movement have been promoting such legislation since 2014, as part of a larger push for legislation in the U.S. Congress to mandate that “Israeli settlements be treated, in effect, as part of sovereign Israel.”

However, the ACLU sees these laws as conflicting with the First Amendment, and is fighting a similar case in Kansas.

“The First Amendment squarely protects the right to participate in political boycotts,” Hauss said in the ACLU statement. “The government cannot use its financial leverage over state contracts to prevent people from exercising their constitutional rights.”

Hauss also pointed out the Supreme Court’s 1982 ruling that political boycotts are protected by the First Amendment.

In 2016, when the Arizona law was enacted, Jordahl signed under protest the paperwork certifying that his firm “is not currently engaged in a boycott of Israel.”

According to Hauss, this was an unconstitutional certification that bounded Jordhal from the political actions he chose to undertake.

These include, for example, not purchasing any Hewlett-Packard devices, because HP provides information-technology services to Israeli checkpoints in the West Bank, or opting out of buying products made in Israeli settlements.

“[Jordahl] got requests from Jewish Voice for Peace to provide support in financial contributions and he said he had to turn them down because of the certification,” Hauss said. “He couldn’t speak out about his own individual boycott participation because he was worried it would draw unwanted attention to his law firm.”

President Donald Trump’s announcement on Wednesday, officially recognizing Jerusalem as Israel’s capital, is in line with these state laws, Hauss added.

While the ACLU does not have an official position on Trump’s statement, Hauss said it will “vigorously defend the right to participate in political boycotts – and that includes boycotts of Israel or of Israeli settlements.”