336 F. Supp. 3d 1016
D. Ariz.2018Background
- Arizona enacted A.R.S. § 35-393.01 (2016), conditioning state contracts on a written certification that the contractor "is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel."
- "Boycott" is defined to include refusal to deal or other actions intended to limit commercial relations with Israel or persons/entities doing business in Israel, when taken in compliance with calls to boycott Israel or when motivated by nationality/religion discrimination.
- Plaintiff Mikkel Jordahl, sole owner of his law firm, personally participates in politically motivated boycotts of companies doing business in Israeli-occupied territories and wants his firm to do likewise and to support groups like Jewish Voice for Peace.
- Jordahl's firm has contracted with Coconino County for 12 years; county required the certification in 2016 (signed under protest) and again in 2017 (refused; county continued to accept services but stopped paying the firm).
- Plaintiffs sued State officials and sought a preliminary injunction to bar enforcement of § 35-393.01(A), arguing the certification condition violates the First and Fourteenth Amendments by chilling/prohibiting protected expressive association and boycott activity.
- The court denied abstention/certification to the Arizona Supreme Court, found plaintiffs have standing (including against the Attorney General), and granted a preliminary injunction enjoining enforcement of § 35-393.01(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue over § 35-393.01(A) | Jordahl/Firm suffer injury from being forced to certify and from withheld payments; self-censorship is a cognizable First Amendment injury | State: no injury unless plaintiff actually engages in a prohibited boycott; AG lacks causal connection and enforcement authority | Court: Plaintiffs have standing; actual withheld payment and chilling effect suffice; AG is properly joined under Ex parte Young because his authority has coercive effect on county payments |
| Pullman abstention/certification to state court | Not necessary; federal adjudication appropriate for First Amendment claims | State: statute new and ambiguous; state-law interpretation could avoid constitutional question; request for certification | Court: Abstention and certification denied — First Amendment issues weigh against Pullman; state-law narrowing would not avoid constitutional inquiry |
| Whether statute burdens protected expressive conduct | Plaintiffs: boycotts (collective, politically motivated) are protected (Claiborne); certification compels/conditions speech and association | State: boycotts are commercial, unexpressive conduct (Int’l Longshoremen, Briggs) and statute is viewpoint-neutral regulation of commerce | Court: The statute reaches collective, political boycott activity protected by the First Amendment; Int’l Longshoremen and Briggs are distinguishable; statute likely unconstitutional as an unconstitutional condition on contractors' speech |
| Whether State interests justify the restriction | State: interest in aligning commerce with state policy and preventing national-origin discrimination | Plaintiffs: interests speculative, not shown necessary; statute overbroad and viewpoint-motivated | Court: State failed to show the restriction is necessary to the actual operation of government or that harms are real and alleviated by the ban; balance favors injunction |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (corporate entities have First Amendment protections)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (collective, politically motivated boycotts are protected speech/association)
- Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212 (1982) (secondary labor boycotts regulated under NLRA; context-specific)
- Nat'l Treasury Employees Union v. IRS, 513 U.S. 454 (1995) (broad prospective restrictions on government employees' speech require strong necessity; unconstitutional conditions doctrine)
- Umbehr v. McClure, 518 U.S. 668 (1996) (independent contractors retain First Amendment protections against retaliation/conditioning of contracts)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public employee speech against government interests)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing Article III requirements)
- Ex parte Young, 209 U.S. 123 (1908) (circumventing sovereign immunity for prospective relief against state officers enforcing unconstitutional statutes)
- Janus v. AFSCME, 138 S. Ct. 2448 (2018) (associational and compelled-speech principles; heightened scrutiny where broad prophylactic rules chill speech)