Mikkel Jordahl owns a law firm and has a contract with the Coconino County Jail District in Arizona. The firm provides advice to incarcerated individuals on civil rights, confinement conditions, extradition, habeas corpus, and other issues. But in order to maintain the contract, Jordahl must certify under state law that as a contractor he is not engaged in the boycott of Israel.
On behalf of Jordahl, the American Civil Liberties Union filed a federal lawsuit [PDF] which argues the law violates the First Amendment and Fourteenth Amendment by requiring government contractors to “disavow their participation in political boycotts.”
“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.”
In March 2016, the Arizona legislature passed H.B. 2617, which defined “boycott” as a “refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with Israel or with persons or entities doing business in Israel or territories controlled by Israel.”
It designated “boycotts” of Israel as an act that “discriminates on the basis of nationality, national origin, or religion and that is not based on a valid business reason.”
“A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a 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.”
Jordahl signed a certification in 2016 that said he shall not engage in a boycott of Israel while he is working for Coconino County Jail District. But he added, “I was extremely surprised to see the one page addendum attached to the contract related to boycotts of Israel.”
“I understand this is a new state law, and the county is bound to follow it,” Jordahl added. “I will comply as long as the law is in effect, however, I wanted it on record that I strongly oppose the law as I believe it is an unconstitutional violation of the First Amendment. I do reserve my right to challenge the law in the courts.”
He made it clear he was signing it as a “sole-proprietor contractor” and not in any personal capacity because he is a non-Jewish member of Jewish Voice for Peace, which has endorsed the Boycott, Divestment, and Sanctions (BDS) campaign against the Israeli government’s occupation of Palestinian territories.
As the complaint indicates, Jordahl “boycotts consumer goods and services offered by businesses supporting Israel’s occupation.” He protests the occupation, as well as illegal Israeli settlements that he “believes violate the human rights of Palestinians.” He writes to elected representatives and advocates for “reduction in funding to Israel proportional to Israeli spending on settlements.”
Jordahl received a letter to renew his contract with the Coconino County Jail District on November 14. He did not sign the agreement because he would like his work as a contractor to be part of the boycott, and according to the ACLU, he would also like to represent individuals and organizations involved in boycotts to help them defend their rights to political expression.
Jordahl stated, “Whatever your stance on the boycott issue, everyone has a right to express their opinions on it and act accordingly. The state has no right to tell private companies how to act when it has nothing to do with state business.”
At least 16 other states, including Arkansas, Texas, and Kansas, have similar policies imposing restrictions on contractors. It is all a part of what Palestine Legal deems the “Palestine exception to free speech.”
In a 2015 report, Palestine Legal summarized, “Over the last decade, a dynamic movement in support of Palestinian human rights, particularly active in U.S. colleges and universities, has helped raise public awareness regarding the Israeli government’s violations of international law, as well as the role of corporations and the U.S. government in facilitating these abuses.”
“This activism, fueled by Israel’s increasingly destructive assaults on Gaza, presents a robust and sustainable challenge to the longstanding orthodoxy in the United States that excuses, justifies, and otherwise supports discriminatory Israeli government policies.”
“Fearful of a shift in domestic public opinion, Israel’s fiercest defenders in the United States—a network of advocacy organizations, public relations firms, and think tanks—have intensified their efforts to stifle criticism of Israeli government policies. Rather than engage such criticism on its merits, these groups leverage their significant resources and lobbying power to pressure universities, government actors, and other institutions to censor or punish advocacy in support of Palestinian rights,” the report additionally suggested.
In the past few years, “Israel’s fiercest defenders” have focused their attention on state legislatures to undermine or shut down boycotts and other acts of political expression.
New York Governor Andrew Cuomo and the state’s legislators supported a “blacklist” of companies that the state should not invest money in because they support the boycott of Israel.
Illinois has a law that requires pension funds to divest from companies that support the boycott of Israel, and states like Pennsylvania adopted a measure to defund universities which are deemed to be supportive of the boycott of Israel.
A bill under consideration in Congress would make it a felony to support boycotts of companies doing business in Israel.
The ACLU’s lawsuit is the second lawsuit filed in federal court against anti-boycott laws. A similar law exists in Kansas, where the ACLU is representing a “high school curriculum coach who cannot take part in the state program to train other teachers” because he refuses to sign an anti-boycott certification.