It’s becoming increasingly clear that the bond between Arizona and Israel is becoming stronger and stronger. One of the ways in which this is evident is the business relations that are increasing by the minute. For example, up and coming high-tech startups from Israel are heading to Arizona to set up American operations, and to expand their resources and their research and innovations in everything from autonomous flying to drones to agricultural tech. Another way this is evident is a law that prevents state-funded contractors from boycotting Israeli-based companies.
State Attorney General Mark Brnovich recently announced his office will defend an Arizona law that prevents this kind of discrimination from happening. Brnovich filed a motion to dismiss in Jordahl v. et al, arguing Arizona’s law was enacted to prevent national origin discrimination.
“The law prohibits all state contractors, who receive taxpayer money, from discriminating on the basis of national origin. Nothing in the statute prevents the defendant from exercising his First Amendment rights,” Brnovich said.
The Arizona Legislature passed the bill in 2016 preventing public entities from awarding contracts to companies or individuals that engage in boycotts of Israel. This was followed by a challenge from the ACLU in December of last year which assessed that the law violated the First Amendment. While protecting free speech is always a hot-button issue, Brnovich’s office declares that the law is in place to prevent discrimination, not protect it, and only deals with discriminatory conduct and does not prevent free speech in turn.
“Our government has an important interest in preventing discrimination. Moreover, Israel is one of the few precious democracies in the Middle East and an ally of the United States,” adds Brnovich. “The state reasonably wants to avoid spending its public funds in a manner that subsidizes discriminatory boycotts of Israel, and the Act is a reasonable measure to ensure that subsidization does not occur. That is particularly true given that many BDS boycotts have clear anti-Semitic motivation.”
Currently, there are 24 additional states that have similar measures already in place, including two others in the Ninth Circuit (California and Nevada). There’s also at least one state, according to Brnovich, with a similar statute or executive order in every other regional court of appeals except for the D.C. Circuit. These statutes have generally been passed by bipartisan supermajorities and signed into law by both Republican and Democratic governors.
Also, Brnovich remarks that this isn’t a free speech issue in a pure form. The statute regulates conduct, not speech, per se. While the law prevents direct boycotting, it doesn’t make it illegal to criticize Israel or give to groups that call for boycotts.
“The State has never said individuals cannot exercise their right to free speech regarding Israel and its policies in the West Bank. They remain entirely free to do so, and to call for changes in Israeli, federal or state policy,” says Brnovich. “But if a business is a state contractor and receives taxpayer funds, the State can reasonably ask that business entity to refrain from boycotting Israel during the duration of the contract.”