EXHIBIT 1 

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394116.1 

Jonathan M. Rotter (admitted pro hac vice) 

GLANCY PRONGAY & MURRAY LLP 

1925 Century Park East, Suite 2100 

Los Angeles, California 90067 

Telephone: (310) 201-9150 

Facsimile: (310) 201-9160 

jrotter@glancylaw.com 

Counsel for Amicus Curiae StandWithUs 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, 

P.C., 

 Plaintiffs, 

v. 

Mark Brnovich, Arizona Attorney General; 

Jim Driscoll, Coconino County Sheriff; 

Matt Ryan, Coconino County Board of 

Supervisors Chair; Lena Fowler, Coconino 

County Board of Supervisors Vice Chair; 

Elizabeth Archuleta Coconino County 

Board of Supervisors Member; Art 

Babbott, Coconino County Board of 

Supervisors Member; Jim Parks, Coconino 

County Board of Supervisors Member; 

Sarah Benatar, Coconino County Treasurer, 

all in their official capacities, 

 Defendants. 

No. CV-17-08263-PCT-DJH 

AMICUS CURIAE BRIEF OF 

STANDWITHUS 

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TABLE OF CONTENTS 

THE IDENTITIES AND INTERESTS OF THE AMICI CURIAE ......................................... 1

INTRODUCTION .................................................................................................................... 1

ARGUMENT ............................................................................................................................ 2

I. The Act serves the State’s compelling interest in combatting discrimination 

based on national origin and religious affiliation. ......................................................... 2

A. The Legislature believed that the Act was necessary to combat the 

discriminatory nature of BDS. ............................................................................ 3

B. The Act serves the State’s compelling interest in combatting 

discrimination. .................................................................................................... 7

II. The Act does not constrain Plaintiffs’ expression of political views; it 

addresses non-expressive conduct not entitled to First Amendment 

protection. ...................................................................................................................... 9

A. Rumsfeld v. FAIR establishes that the Act does not violate the First 

Amendment because it regulates conduct that is not inherently 

expressive. ........................................................................................................... 9

B. NAACP v. Claiborne Hardware Co. does not give blanket First 

Amendment protection to boycotts. .................................................................. 10

C. Plaintiffs’ position changes the First Amendment from a shield for 

speech to a sword for cutting through generally applicable law. ..................... 12

CONCLUSION ....................................................................................................................... 13

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TABLE OF AUTHORITIES 

Cases 

Barlow v. Blackburn, 

165 Ariz. 351 (Ct. App. 1990) ............................................................................................ 13 

Board of Directors of Rotary Intern. v. Rotary Club of Duarte, 

481 U.S. 537 (1987) .............................................................................................................. 8 

Bob Jones Univ. v. United States, 

461 U.S. 574 (1983) .............................................................................................................. 8 

Emp’t Div., Dep’t of Human Res. of State of State of Or. v. Smith, 

485 U.S. 660 (1988) ............................................................................................................ 10 

Feldman v. Arizona Secretary of State’s Office, 

208 F.Supp.3d 1074 (D. Ariz. 2016) .............................................................................. 9, 10 

Heart of Atlanta Motel, Inc. v. U.S., 

379 U.S. 241 (1963) .............................................................................................................. 8 

Hishon v. King & Spalding, 

467 U.S. 69 (1984) ................................................................................................................ 8 

Humanitarian Law Project v. Reno, 

205 F.3d 1130 (9th Cir. 2000) ............................................................................................ 11 

Int’l Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 

456 U.S. 212 (1982) ............................................................................................................ 11 

Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of New York, Inc., 

968 F.2d 286 (2d Cir. 1992) .......................................................................................... 11, 12 

Koontz v. Watson, No. 17-4099-DDC-K, 

GS, 2018 WL 617894 (D. Kan. Jan. 30, 2018) ................................................................... 12 

NAACP v. Claiborne Hardware Co., 

458 U.S. 886 (1982) ................................................................................................ 10, 11, 12

Norwood v. Harrison, 

413 U.S. 455 (1973) .............................................................................................................. 8 

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Potter v. Murray City, 

760 F.2d 1065 (10th Cir. 1985) .......................................................................................... 13 

Reynolds v. United States, 

98 U.S. 145 (1878) .............................................................................................................. 13 

Roberts v. U.S. Jaycees, 

468 U.S. 609 (1984) ..................................................................................................... passim 

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 

547 U.S. 47 (2006) ................................................................................................................ 9 

Runyon v. McCrary, 

427 U.S. 160 (1976) .............................................................................................................. 8 

State v. Fischer, 

219 Ariz. 408, 199 P.3d 663 (Ct. App. 2008) ..................................................................... 13 

United States v. O’Brien, 

391 U.S. 367 (1968) .............................................................................................................. 9 

Statutes

19 U.S.C. § 4452(b)(4)-(5) ..................................................................................................... 12 

A.R.S. § 35-393 ......................................................................................................................... 1 

Regulations

49 C.F.R. § 21.7 ...................................................................................................................... 10 

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THE IDENTITIES AND INTERESTS OF THE AMICI CURIAE 

Amici submit this brief in support of the State’s opposition to Plaintiffs’ motion for a 

preliminary injunction, Dkt. No. 6. 

StandWithUs is an international, non-profit Israel education organization. Founded in 

2001, its staff and volunteers are inspired by their love for Israel and the belief that education 

is the road to peace. StandWithUs is dedicated to educating people of all ages about Israel 

and to combating the anti-Semitism and extremism that often distorts Israel-related issues. 

We believe that knowledge of the facts will correct common prejudices about the ArabIsraeli conflict, and will foster discussions and policies that help promote peace in the region. 

Israel Allies Foundation and the Israel Project join StandWithUs as amici curiae. 

Each believes that the interests of the United States and Israel are aligned and are opposed to 

efforts to discriminate against the State of Israel, Israelis, or Jews. 

Amici have a long history of submitting amicus briefs in cases that affect religious 

liberty and anti-Semitism, and submit this brief as advocates for the civil and religious rights 

of their constituents in Arizona and the United States. 

INTRODUCTION 

The United States has a long and honorable history of resisting anti-Semitism. Our 

country was founded on the principles of civil liberty and freedom from oppression and 

discrimination. In a letter to the Hebrew Congregation of Newport, George Washington 

wrote that the United States has a “Government . . . which gives to bigotry no sanction, to 

persecution no assistance . . . .”1

 The Legislature, in passing A.R.S. § 35-393 et. seq. (the 

“Act”), aspired to Washington’s lofty ideal. 

As the State’s brief demonstrates, Plaintiffs’ preliminary injunction motion implicates 

the State’s compelling interest in condemning and confronting discriminatory conduct based 

on national origin and religious affiliation. Amici write to emphasize two points. 

 1

 George Washington, Letter to the Hebrew Congregation at Newport, August 21, 

1790, http://teachingamericanhistory.org/library/document/letter-to-the-hebrewcongregation-at-newport/. 

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First, the Act would be constitutional even if this Court were to find that it infringed 

on Plaintiffs’ First Amendment rights because it serves the State’s compelling interest in 

combatting discrimination based on national origin and religious affiliation. Plaintiff Mikkel 

Jordahl declares that his boycott is inspired by, among other things, the Boycott, Divestment, 

and Sanctions movement (“BDS”). (Pl.’s Dec. 7, 2017 Decl., Dkt. 6-1 ¶¶ 10-11). The 

Arizona legislature (the “Legislature”) had BDS in mind in enacting the Act, and it 

recognized that BDS is intended to coerce Israelis and Jews by means of economic sanctions. 

Evidence of the anti-Semitic nature of BDS is described below. 

Second, the Act does not curtail Plaintiffs’ First Amendment freedoms of expression 

and association. The Act prevents the State of Arizona from spending money to support 

those who engage in discriminatory conduct that is not inherently expressive. Were 

Plaintiffs’ First Amendment argument to prevail, all conduct intended to advance any policy 

change would be protected by the First Amendment. But that is not the law, and accepting 

Plaintiffs’ argument would give rise to substantial mischief wholly apart from this case.2

 

ARGUMENT 

I. The Act serves the State’s compelling interest in combatting discrimination 

based on national origin and religious affiliation. 

The Act is an anti-discrimination measure. The Legislature understood it as such, and 

believed that it was necessary to help prevent the discriminatory goals and conduct of BDS 

and allied organizations. And the Legislature’s belief that BDS is invidious discrimination is 

amply supported by the facts showing that it is a modern-day manifestation of anti-Jew 

bigotry and vitriol, resurrecting the same stereotypes and demonization that Jews have met 

for centuries. Therefore, even if the Court were to hold that Plaintiffs’ desired economic 

coercion is expressive conduct protected by the First Amendment (which it is not, see Part II 

below), the Act would be constitutional because it furthers the State’s compelling interest in 

 2

 Amici agree with the State’s contention that Plaintiffs’ motion can be properly 

denied without reaching any First Amendment issue, but are addressing the First 

Amendment issues in case the Court is inclined to decide them. 

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combating discrimination. 

A. The Legislature believed that the Act was necessary to combat the 

discriminatory nature of BDS. 

Arizona legislators have repeatedly stressed that one of the Act’s central purposes was 

to combat the discriminatory goals of the boycott Israel movement. For example: 

“I just want to make sure you understand why we’re doing this . . . nobody 

should be doing things for bigotry, honestly.”3

 

“Anti-Semitism is on the rise across the globe and that’s why I think this bill is 

extremely important.”4

“When the nature of boycott is rooted in anti-Semitism . . . it is rooted in 

hatred. If you are going to boycott somebody because you are anti-Semitic, 

it’s rooted in not a political thought or philosophy or an economic action . . . 

it’s a position rooted in hatred . . . . if you are going to align yourself with 

somebody who is going to boycott one because they hate somebody, I don’t 

think that falls in the same comparison with criticizing . . . . When you have a 

worldwide boycott solely rooted in a hatred for a people . . . [o]vertly racist . . . 

[t]hat takes it to a whole different level.”5

In passing the Act, Arizona joined 23 other states and the federal government in 

enacting similar measures to combat discriminatory conduct against Israel and Jews. The 

Legislature recognized that the BDS campaign is fundamentally anti-Semitic, targeting Jews 

and Israelis based on their religion and their nationality. The BDS campaign’s anti-Semitic 

character is evidenced by its objective of eliminating the Jewish State; its financial 

supporters; the hateful anti-Semitic tropes, images and chants it employs; the harassment in 

which its members engage; and the double standard it applies. 

Boycotts against Jews and Jewish-owned businesses have a long, pernicious history. 

 3

 Statement of Speaker David Gowan, Hearing on HB2617 Before the H. Federalism 

and States’ Rights Comm., 52nd Leg. 2nd Regular Sess. (Az. 2016) at 5:56, available at

goo.gl/hXvFFE. 

4

 Statement of Sen. Nancy Barto, Hearing on HB2617 Before the S. Federalism, 

Mandates and Fiscal Responsibility Comm., 52nd Leg. 2nd Regular Sess. (Az. 2016) at 

31:21 (explaining “aye” vote), available at goo.gl/FddSRK. 

5

 Statement of Sen. Steve Smith, Hearing on HB2617 Before the S. Gov’t Comm., 

52nd Leg. 2nd Regular Sess. (Az. 2016) at 24:30, available at goo.gl/5w55En. 

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In 1922, Arab leaders in the Palestine Mandate launched a boycott against Jews.6

 In 1933, 

the Nazi regime in Germany boycotted Jewish-owned stores and businesses in an attempt to 

isolate and exclude Jews from all civic life.7

 In 1945, prior to the creation of the Jewish state 

(and long before Israel obtained control of territories in the 1967 war), the Arab League 

Council called for a boycott of all Jewish and Zionist products.8

 

BDS, operating under the guise of human rights, has resurrected this form of antiSemitism by calling for a global boycott of Israel and a secondary boycott against companies 

doing business with Israel. BDS co-founder Omar Barghouti and other leaders have stated 

that BDS’s goal is to eliminate the State of Israel.9

 President Barack Obama acknowledged 

that BDS’s agenda would end Israel’s existence as a Jewish state, “and that’s not an 

option.”10 And the organization spearheading many of the BDS activities in the United 

States, Students for Justice in Palestine (“SJP”) routinely chants at BDS rallies, “From the 

[Jordan] river to the [Mediterranean] sea, Palestine will be free”—a call for Israel to be 

erased from the map.11 

The United States Department of State has determined that it is a form of anti-

 6 See http://jcpa.org/unmasking_img_1/ 

7

 United States Holocaust Memorial Museum Holocaust Encyclopedia, Boycott of 

Jewish Businesses, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005678 (last 

visited February 7, 2018). 

8

 Mitchell Bard, Arab League Boycott: Background and Overview, Jewish Virtual 

Library (Updated February 2017), http://www.jewishvirtuallibrary.org/background-andoverview-of-the-arab-boycott-of-israel. 

9

 John Y. Jones, Omar Barghouti – Strategies for Change, Vimeo (September 2013), 

https://vimeo.com/75201955 at 5:54 (“we oppose a Jewish State in any part of Palestine . . . 

.”); see also A Critique of Norman Finkelstein on BDS, alakhbar english (February 17, 2012), 

http://english.al-akhbar.com/blogs/angry-corner/critique-norman-finkelstein-bds 

(“Finkelstein rightly asks whether the real aim of BDS is to bring down the state of Israel. 

Here, I agree with him that it is. That should be stated as an unambiguous goal.”). 

10 Barack Obama, Obama: Opposes ‘Right of Return’ Inside Israel, YouTube (May 2, 

2008), http://www.youtube.com/watch?v=Xatt3DmTXHo. 

11 E.g., Rutgers SJP Chanting “From the River to the Sea, Palestine will be Free,” 

YouTube, https://www.youtube.com/watch?v=ShWMwqHpO_I (last visited February 7, 

2018). 

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Semitism to delegitimize Israel through “[d]enying the Jewish people their right to selfdetermination, and denying Israel the right to exist.”12 Established international law holds 

that all people have a right to self-determination.13 BDS’s denial of this right only to the 

Jewish people discriminates not only against Israelis, but also against the Jewish people as a 

whole. 

Moreover, the Jewish people’s connection to the land of Israel dates back thousands 

of years. Jewish liturgy repeatedly underscores the intimate relationship between Jews and 

Israel.14 And Jerusalem is the holiest site in Judaism.15 There is no question that by 

targeting Israel, BDS is targeting Jews and Judaism. 

BDS is particularly prevalent on college campuses, sparking an uptick in antiSemitism against Jewish college students. In the wake of the BDS campaign, Jewish 

students have been repeatedly harassed with derogatory anti-Semitic slurs and have faced 

discrimination on the basis of their Jewish identities.16 The anti-Semitic tropes, images and 

 12 See Defining Anti-Semitism, U.S. Department of State (January 20, 2017), 

https://www.state.gov/s/rga/resources/267538.htm. This definition of Anti-Semitism has 

broad acceptance and mirrors that articulated by the International Holocaust Remembrance 

Alliance (IHRA), an organization with 31 member countries. See

https://www.holocaustremembrance.com/node/196 (last visited February 7, 2018). The 

IHRA’s working definition of anti-Semitism has been adopted by Austria, Bulgaria, 

Germany, Romania, the United Kingdom, and the European Union Parliament. What is 

Antisemitism?, Campaign Against Antisemitism, https://antisemitism.uk/definition/ (last 

visited February 7, 2018). 

13 Charter of the United Nations, http://www.un.org/en/sections/un-charter/chapteri/index.html (last visited February 7, 2018). 

14 See, e.g., Liturgical References to Zion, 1-4 (2015), https://israeled.org/wpcontent/uploads/2014/08/Liturgical-References-to-Zion.pdf. 

15 Rachel Avraham, The 5 Holiest Places in the Jewish Faith, Jerusalem Online 

(January 24, 2017, 10:45 AM), http://www.jerusalemonline.com/culture-and-lifestyle/the-5-

holiest-places-in-judaism-26166. 

16 Adam Nagourney, In U.C.L.A. Debate Over Jewish Student, Echoes on Campus of 

Old Biases, NYTimes.com (March 5, 2015), http://www.nytimes.com/2015/03/06/us/debateon-a-jewish-student-at-ucla.html?_r=0; Anthony Berteaux, In the safe spaces on campus, no 

Jews allowed, Washington Post.com (September 15, 2016), 

https://www.washingtonpost.com/news/acts-of-faith/wp/2016/09/15/in-the-safe-spaces-oncampus-no-jews-allowed/?utm_term=.d533bdbace71; Margaux Gundzik, Letter to the 

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chants that BDS employs, and the hatred that accompanies many BDS protests and 

demonstrations, cannot be adequately described in the limited context of this brief.17 

Examples include spreading Nazi-like cartoons that dehumanize Israelis by portraying them 

as a malicious octopus, applying age old anti-Semitic slurs about Jewish greed to Israelis, 

and spreading modern day forms of the medieval blood libel.18 

These tropes and memes are directly traceable to BDS’s leaders. A BDS co-founder 

has outrageously claimed that Israel engaged in “medical experimentation” against 

Palestinian women.19 Hatem Bazian, who cofounded Students for Justice in Palestine and is 

Chairman of American Muslims for Palestine, each a leading member the BDS movement, 

has spread claims about organ harvesting and claimed that the “Israel lobby manufactured 

[the] UK Labour Party’s anti-Semitism crisis . . . .”20 In November 2017, he was forced to 

apologize for spreading blatantly anti-Semitic images on social media.21

 

Editor: A Hollow Victory for the Jewish Community, The Bottom Line (April 17, 2015), 

https://thebottomline.as.ucsb.edu/2015/04/letter-to-the-editor-a-hollow-victory-for-thejewish-community; Jennifer Medina, Student Coalition at Stanford Confronts Allegations of 

Anti-Semitism, NYTimes.com (April 14, 2015), 

http://www.nytimes.com/2015/04/15/us/student-coalition-at-stanford-confronts-allegationsof-anti-semitism.html. 

17 See, e.g., Hate Spaces: The Politics of Intolerance on Campus (Trailer), YouTube 

(November 23, 2016), https://www.youtube.com/watch?v=IvxYazOSeys. 

18 Adam Levick, Anti-Semitic Cartoons on Progressive Blogs, Jerusalem Center for 

Public Affairs (September 2, 2010), http://jcpa.org/article/anti-semitic-cartoons-onprogressive-blogs/; Petra Marquardt-Bigman, Rutgers Prof Insists Her Updated Version of 

the Blood Libel is Not Anti-Semitic, the tower.org (March 20, 2016, 7:34 PM), 

http://www.thetower.org/3117-rutgers-prof-insists-her-updated-version-of-the-blood-libel-isnot-anti-semitic/. 

19 Omar Barghouti @ USC 1.12.2012, YouTube (January 19, 2012), 

https://www.youtube.com/watch?v=gYwPyc4t7U0. 

20 Tikva: Students for Israel, Facebook (December 4, 2017), 

https://www.facebook.com/tikvah.berkeley/posts/1718193621544633. 

21 See Yair Rosenberg, Co- Founder of Students for Justice in Palestine Shares 

Insanely Anti-Semitic Memes, Offers World’s Least Convincing Apology, Tablet (November 

28, 2017), http://www.tabletmag.com/scroll/250354/co-founder-of-students-for-justice-inpalestine-shares-insanely-anti-semitic-memes-offers-worlds-least-convincing-apology (the 

meme displayed the image of a stereotypically Jewish looking man with the words “MOM 

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Amici are not suggesting that Plaintiffs share the vile views espoused by many BDS 

adherents. Amici’s point is just this: the Legislature had good cause to believe that antiIsrael boycotts, including boycotts promoted by BDS, are discriminatory because they single 

out one country and nationality, and by extension, one religious group for discrimination. 

The Legislature believed that such boycotts were rooted in anti-Semitism, and the evidence 

strongly indicates that the Legislature was correct. 

B. The Act serves the State’s compelling interest in combatting 

discrimination. 

The Supreme Court has long held that rights protected by the First Amendment are 

not absolute; those rights can be infringed to further a sufficiently compelling state interest. 

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), is illustrative. The Jaycees argued that the 

state law’s requirement that the Jaycees admit women as full members violated its members’ 

freedom of association. The Court agreed that the act to some extent infringed on the 

Jaycees’ First Amendment rights: “Such a regulation may impair the ability of the original 

members to express only those views that brought them together.” Id. at 623. But, the Court 

held, “[t]he right to associate for expressive purposes is not . . . absolute.” Id. 

“Infringements on that right may be justified by regulations adopted to serve compelling 

state interests, unrelated to the suppression of ideas, that cannot be achieved through means 

significantly less restrictive of associational freedoms.” Id. The Court concluded that it was 

“persuaded that Minnesota’s compelling interest in eradicating discrimination against its 

female citizens justifies the impact that application of the statute to the Jaycees may have on 

the male members’ associational freedoms.” Id. (emphasis added). 

In reaching this conclusion, the Court took note of the long history of discrimination 

against women “based on archaic and overbroad assumptions about the relative needs and 

capacities of the sexes” and “stereotypical notions that often bear no relationship” to the 

 

LOOK! I IS CHOSEN! I CAN NOW KILL, RAPE, SMUGGLE ORGANS & STEAL THE 

LAND OF PALESTINIANS *YAY* ASHKE-NAZI”). 

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facts. Id. at 625. Such discrimination “both deprives persons of their individual dignity and 

denies society the benefits of wide participation in political, economic, and cultural life.” 

Id;.

22accord, Board of Directors of Rotary Intern. v. Rotary Club of Duarte, 481 U.S. 537, 

549 (1987) (holding that infringement on Rotary Club members’ freedom of association “is 

justified because it serves the State’s compelling interest in eliminating discrimination 

against women.”). 

And in other cases, the Supreme Court has rejected First Amendment challenges to 

anti-discrimination statues and civil rights laws without conducting a compelling interest 

analysis, simply holding that “the Constitution . . . places no value on discrimination,” and 

that “while [i]nvidious private discrimination may be characterized as a form of exercising 

freedom of association protected by the First Amendment . . . it has never been accorded 

affirmative constitutional protections.” Runyon v. McCrary, 427 U.S. 160, 176 (1976) 

(quoting Norwood v. Harrison, 413 U.S. 455 (1973)). See also Hishon v. King & Spalding, 

467 U.S. 69, 78 (1984) (upholding Title VII of the Civil Rights Act against a First 

Amendment freedom of expression and association challenge); Bob Jones Univ. v. United 

States, 461 U.S. 574, 604 (1983) (prevention of race discrimination in education is a 

compelling government interest in the free exercise context). 

Thus, even if the Court were to hold that Plaintiffs’ boycott is an expressive activity 

protected by the First Amendment, and that the Act applies to it, the Act should survive 

because it “serve[s] compelling state interests, [is] unrelated to the suppression of ideas, that 

cannot be achieved through means significantly less restrictive of [First Amendment] 

freedoms.” 468 U.S. at 623. Here, the Act serves the compelling interest of combating 

“archaic” and “stereotypical” characterizations of Jews which “deprive[] them of their 

individual dignity and denies society the benefits of [their] participation in political, 

 22 See also Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1963), 292 (Goldberg, 

J., concurring) (“[d]iscrimination is not simply dollars and cents, hamburgers and movies; it 

is the humiliation, frustration, and embarrassment that a person must surely feel when he is 

told that he is unacceptable as a member of the public....”). 

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economic and cultural life.” Id. at 625. In Part II, next, we show that the Act is unrelated to 

the suppression of ideas. 

II. The Act does not constrain Plaintiffs’ expression of political views; it addresses 

non-expressive conduct not entitled to First Amendment protection. 

A. Rumsfeld v. FAIR establishes that the Act does not violate the First 

Amendment because it regulates conduct that is not inherently expressive. 

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) 

(“FAIR”), involved the constitutionality of the Solomon Amendment, which Congress 

enacted when “law schools began restricting the access of military recruiters to their students 

because of disagreement with the Government’s policy on homosexuals in the military.” 547 

U.S. at 51. The Amendment sought to end schools’ boycotts of military recruiters by 

withholding federal funding from colleges and universities that prohibited the military from 

recruiting on campus in a manner equal to other employers. Id. at 54. The Supreme Court 

rejected a First Amendment challenge, holding that denying access to military recruiters was 

conduct, not protected speech, and was not “inherently expressive” because “[t]he expressive 

component of a law school’s actions is not created by the conduct itself but by the speech 

that accompanies it.” Id. at 66. Where conduct is not inherently expressive, meaning that 

the message cannot be understood unless accompanied by explanatory speech, the First 

Amendment does not prohibit regulating the conduct, or conditioning the receipt of 

government funds on the conduct. 

In short, FAIR “rejected the view that ‘conduct can be labeled speech whenever the 

person engaging in the conduct intends thereby to express an idea.’” 547 U.S. at 65-66 

(quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)). Subsequent decisions have 

reached the same conclusion. For example, in Feldman v. Arizona Secretary of State’s 

Office, 208 F.Supp.3d 1074 (D. Ariz. 2016), the court rejected a First Amendment challenge 

to a law regulating who can possess another person’s early ballot. The challenge was based 

on the argument “that ballot collection is expressive activity.” Id. at 1092. The court 

disagreed, finding that while “many [Get Out The Vote] activities involve First Amendment 

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protected activity, there is nothing inherently expressive or communicative about receiving a 

voter’s completed early ballot and delivering it to the proper place.” Id. at 1092. The court 

further held that even if the law implicated protected associational rights, it would still be 

constitutional because it left plaintiffs with many pathways to encourage voting. Id. at 1092-

93. Similarly, here, the Act leaves open many ways for Plaintiffs to express their views. 

Further, courts have repeatedly upheld laws like Title II of the Civil Rights Act and 

Title III of the Americans with Disabilities Act although the conduct in question implicated 

some form of expression. See Part I.B, supra. Conditioning government funding on 

compliance with law is routinely upheld, even when some First Amendment right is 

implicated. See Emp’t Div., Dep’t of Human Res. of State of State of Or. v. Smith, 485 U.S. 

660, 671 (1988) (upholding denial of unemployment benefits over First Amendment 

challenge). And non-discrimination certifications are required as a matter of course for 

many types of state funding and government contracts. See, e.g., 49 C.F.R. § 21.7, Ariz. 

Dept. of Transportation Title VI Assurances, https://azdot.gov/docs/business/title-viassurances-for-sub-recipients-44-consultants-and-contractors.pdf?sfvrsn=0. 

B. NAACP v. Claiborne Hardware Co. does not give blanket First Amendment 

protection to boycotts. 

This Court should reject Plaintiffs’ claim that NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) establishes a blanket rule that boycotts are protected by the First 

Amendment. In Claiborne, white merchants sued the NAACP for monetary damages, 

alleging that a boycott organized by the NAACP had harmed their businesses. Id. at 889. 

The boycott’s purpose was to pressure merchants to comply with “the rights of equality and 

of freedom” enshrined in the Fourteenth Amendment and in federal anti-discrimination 

statutes. Id. at 899-900, 907, 914. The Supreme Court held that the non-violent elements of 

the petitioners’ activities—specifically the right to associate and support such association 

with “speeches and non-violent picketing”—were protected by the First Amendment and 

thus the boycotters’ “speeches, marches, and threats of social ostracism [could not] provide 

the basis for a damages award.” Id. at 933. But the Court did not hold that all boycotts are 

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always protected by the First Amendment and inexorably immune from all regulation or 

conditions. To the contrary, its holding was limited in several important respects that are 

significant for this case. 

First, Claiborne involved only the damages available through a common-law tort 

claim. It did not address the constitutionality of a statute enacted by the Legislature after 

measured deliberation—as the one here was—and it expressly left open the possibility that 

“a narrowly tailored statute designed to prohibit . . . certain types of secondary pressure may 

restrict protected First Amendment activity.” Id. at 915 n.49. And in addition to FAIR, 

numerous decisions both before and after Claiborne have rejected First Amendment 

challenges to anti-boycott or sanctions statutes designed to achieve important governmental 

interests, especially in the foreign policy arena. E.g , Int’l Longshoremen’s Ass’n, AFL-CIO 

v. Allied Int’l, Inc., 456 U.S. 212 (1982); Humanitarian Law Project v. Reno, 205 F.3d 1130, 

1133 (9th Cir. 2000) (upholding Antiterrorism and Effective Death Penalty Act’s ban on 

material support to terrorists, and rejecting analogy to Claiborne). 

Second, Claiborne holds that a boycott’s purpose is relevant. The Court stressed that 

the boycott was designed “to effectuate rights guaranteed by the Constitution itself” and that 

the boycotters’ “ultimate objectives were unquestionably legitimate.” 458 U.S. at 914, 933. 

The Court expressly did not decide whether “a boycott designed to secure aims that are 

themselves prohibited by a valid state law” would be protected. Id. at 915 n.49. See also id.

at 933 (“At times the difference between lawful and unlawful collective action may be 

identified easily by reference to its purpose”), 912 (“This Court has recognized the strong 

governmental interest in certain forms of economic regulation, even though such regulation 

may have incidental effects on rights of speech and association”); Jews for Jesus, Inc. v. 

Jewish Cmty. Relations Council of New York, Inc., 968 F.2d 286, 297-98 (2d Cir. 1992) 

(First Amendment did not entitle religious group to boycott businesses transacting with Jews 

for Jesus, where boycott’s purpose contravened state legislation that prohibited 

discrimination in commercial transactions based on religion; “Unlike the boycott in 

[Claiborne], the threatened boycott and other concerted economic activity in the instant case 

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. . . were designed to achieve an objective prohibited by valid state and federal statutes”.). 

Unlike the tort claim in Claiborne, the Act does not restrict the speech or expressive 

conduct elements of a boycott; it only impacts, indirectly, through loss of government 

funding, the ability of Plaintiff or other contractors to engage in the act of boycotting. 

Additionally, in contrast to the Claiborne boycotts, the boycotts at issue in the Act are not 

intended to effectuate the constitutional rights of the boycotters, or of any other Americans. 

Instead, they are aimed at punishing individuals and companies, solely because of their 

connection to the only country with a Jewish majority, in contravention of Congress’s 

explicit foreign policy statements. See 19 U.S.C. § 4452(b)(4)-(5) (Congress “opposes 

politically motivated actions that penalize or otherwise limit commercial relationship 

specifically with Israel, such as boycotts of . . . Israel”). And the BDS movement’s 

discriminatory goals are the exact opposite of the NAACP’s goal of ending discrimination. 

See also id. (Congress finding that BDS boycotts “are contrary to the principle of 

nondiscrimination . . . .”).23 

C. Plaintiffs’ position changes the First Amendment from a shield for speech 

to a sword for cutting through generally applicable law. 

Adopting Plaintiffs’ view of the First Amendment would leave countless laws subject 

to First Amendment challenge. Under Plaintiffs’ expansive reading, a citizen’s refusal to 

abide by nearly every law because of his or her political views would be expressive conduct 

protected under the First Amendment. For example, to someone who believes the 

government has protected too much forest, how better to amplify the point than by cutting 

down a protected tree and using it to make paper for the pamphlet publicizing the idea and 

the act? What better way to express disapproval of the federal government than by not 

 23 As this Court is likely aware, another federal district court recently preliminarily 

enjoined enforcement of a Kansas law similar to the Act. See Koontz v. Watson, No. 17-

4099-DDC-KGS, 2018 WL 617894 (D. Kan. Jan. 30, 2018). Koontz is of course not binding 

on this Court, nor is it persuasive. The Koontz court did not have the benefit of adversary 

briefing on the First Amendment issue at the heart of plaintiff’s case—the constitutionality 

of the Kansas law was only addressed at a motion hearing. Id. at *10. 

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paying taxes? Or a company that does not believe in climate change could argue that it 

needs to ignore federal emission standards to make its point. 

Plaintiffs’ expansive view of the First Amendment would be an arrow in the quiver 

for “sovereign citizens” and militiamen holding political beliefs contrary to the law. See

Kristina Goetz, Sovereign Citizens challenge authority of law, The Republic (April 14, 2014, 

3:44 PM) (“sovereign citizen” adherent “refused to surrender to federal agents outside his 

Seligman home because he was certain his legal arguments would prove correct. ‘He 

believed in his heart of hearts that day he was buying time until the paperwork came in and 

he would be exonerated of all charges.’”), https://www.azcentral.com/story/life/aznarratives/2014/04/12/sovereign-citizens-challenge-authority-law/7633147/. 

Discriminatory boycotts are not the only evil combated by the State of Arizona as to 

which objectors have invoked the First Amendment. The State has enforced its laws against 

polygamy, a crime that is also a core belief of the Fundamentalist Church of Jesus Christ of 

Latter-day Saints (“FLDS church”). State and federal courts have had no difficulty rejecting 

First Amendment arguments in those cases. “Congress was deprived of all legislative power 

over mere opinion, but was left free to reach actions which were in violation of social duties 

or subversive of good order.” Barlow v. Blackburn, 165 Ariz. 351, 356 (Ct. App. 1990) 

(rejecting challenge to administrative proceeding by polygamous Colorado City deputy 

sheriff who was member of FLDS church) (quoting Reynolds v. United States, 98 U.S. 145, 

164 (1878)); Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985); State v. Fischer, 219 

Ariz. 408, 199 P.3d 663 (Ct. App. 2008). 

The First Amendment allows the Legislature set substantive conduct requirements, 

but requires that the State allow dissenters to speak to advocate the opposite point of view. 

The Act is fully in accord with that Constitutional structure. 

CONCLUSION 

“[A]cts of invidious discrimination . . . cause unique evils that government has a 

compelling interest to prevent.” 468 U.S. at 628. Amici applaud the Legislature’s 

commitment to that ideal, and respectfully submit that the Act achieves the Legislature’s 

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purpose in complete consistency with the Constitution, in harmony with the ideal of a 

“Government . . . which gives to bigotry no sanction, to persecution no assistance . . . .”24

Dated: February 8, 2018 Respectfully submitted, 

 By: /s/ Jonathan M. Rotter

 GLANCY PRONGAY & MURRAY LLP 

 1925 Century Park East, Suite 2100 

 Los Angeles, California 90067 

 Telephone: (310) 201-9150 

 Facsimile: (310) 201-9160 

 Email: jrotter@glancylaw.com 

 Counsel for Amicus Curiae StandWithUs

 24 George Washington, Letter to the Hebrew Congregation at Newport, supra note 1. 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 8, 2018 I electronically filed the foregoing Amicus 

Curiae Brief with the Clerk’s Office by using the CM/ECF system. I certify that all 

participants in the case are registered CM/ECF users and that service will be accomplished 

by the CM/ECF system. 

DATED this February 8, 2018 By: /s/ Jonathan M. Rotter

GLANCY PRONGAY & MURRAY LLP 

1925 Century Park East, Suite 2100 

Los Angeles, California 90067 

Telephone: (310) 201-9150 

Facsimile: (310) 201-9160 

Email: jrotter@glancylaw.com 

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