Attorneys for the state want a federal appeals court to allow it to deny public contracts to those who boycott Israel, saying Arizona has a legitimate interest in denying support to the Palestine Liberation Army and its “unsavory — and frequently murderous — ends.”
In new legal briefs Monday, Drew Ensign, an assistant attorney general, said Arizonans are free to express their views about the policies of Israel. They can contribute to candidates who would change U.S. policy toward that country and even can urge others to boycott Israel and firms that do business there.
But what they cannot do, Ensign told the 9th Circuit Court of Appeals, is participate in boycotts themselves if they also want to do business with the state.
The new filings come after U.S. District Court Judge Diane Humetewa voided a 2016 law that requires those who seek public contracts to promise not to engage in such boycotts. She said that illegally amounted to the state using its economic power to deny people the right to speak out and act on their personal beliefs.
Last week the appellate judges denied a request by Ensign to lift the injunction blocking enforcement of the law while they consider Ensign’s arguments. And now the state is sending notices to all of its agencies informing them that they cannot refuse to award a contract to anyone simply because that firm refuses to sign an agreement not to participate in the boycott — at least not unless or until a court upholds the law.
The law spells out that public agencies cannot enter into contracts with any company unless the deal
includes “written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.”
Proponents said they wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement.
The idea behind the BDS movement is to get people to boycott companies that do business with Israel to pressure that country to change its policies ranging from settlements on the West Bank to claims of apartheid. Some targeted firms with an Arizona presence are Boeing and Caterpillar.
Humetewa, in her earlier ruling, said Flagstaff attorney Mik Jordahl has a First Amendment right to participate in a boycott, saying the U.S. Constitution protects “activities undertaken to achieve social, political or economic ends.”
Ensign, in Monday’s filings, said the First Amendment protects actions that are “inherently expressive,” designed to send a message. But he said that’s not the case here.
He said Jordahl, who has a contract with Coconino County, wants to be free to refuse to buy a printer for his office from Hewlett-Packard because that company aids Israel in its security work.
But Ensign said that if Jordahl decides to buy a printer from another company, it hardly conveys the message that he is protesting Israeli government policy. Instead, he told the court, it might simply be interpreted as Jordahl liked the features and price of the other printer.
Ensign told the appellate judges even if the content is expressive, the state still has “compelling interests in prohibiting discrimination and regulating commerce.” And in this case, Ensign said, the 2016 law simply aligns the awarding of state contracts – and state dollars – with the state’s public policy objectives and values.
“Israel is one of the few precious democracies in the Middle East and an important trading partner and ally of the United States,” Ensign wrote. “The state has acted to prevent commerce within the state from being used as an economic weapon against Israel and Israelis.”
Ensign said this is underlined by the fact that the effect of the BDS movement is to strengthen the hand of the Palestine Liberation Organization “which pays cash stipends to the families of terrorists.”
“The First Amendment does not leave the state powerless to prevent commerce from furthering such unsavory — and frequently murderous — ends,” he wrote.
And Ensign said the law says that those who get government contracts cannot engage in discriminatory practices.
“To refuse to do business with individuals and entities on the basis of their nationality is to discriminate on the basis of nationality/national origin,” he wrote. “Boycotts against Israel and Israelis are national-origin discrimination under any reasonable construction of that term, just as blanket refusals to conduct any business with Canadians, Mexicans, Belgians would be.”
Ensign also said the 2016 law also reflects the reality that a boycott against Israel disproportionately impacts Jews “and such boycotts often have anti-Semitic motivations.”
But the question of whether the law is really a form of antisemitism was questioned at the time of its approval by state Sen. Steve Farley, D-Tucson.
He said the measure was built on the flawed assumption that all Israelis and all Jews support that country’s current policies. But being an “active, free-market democracy,” he said people think different ways.
Farley specifically cited Jewish Voice for Peace which has a mission of seeking an end to Israeli occupation of the West Bank, Gaza Strip and East Jerusalem.
“It’s ironic that we are putting together the power of the state to coerce a business to not do business with someone they may want to do business with because we’ve decided politically that it’s not something we think is politically correct,” he said. “And we do this in the guise of a democracy defending another democracy.”
No date has been set for the appellate judges to hear the state’s arguments.
But Ryan Anderson, a spokesman for the Attorney General’s Office, said if the 9th Circuit refuses to reinstate the law he expects the case to go to the U.S. Supreme Court. Anderson said about 30 states have similar laws that could be affected.