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MARK BRNOVICH

ATTORNEY GENERAL

Drew C. Ensign (No. 25463)

Oramel H. (O.H.) Skinner (No. 32891)

Brunn (Beau) W. Roysden III (No. 28698)

Evan G. Daniels (No. 30624)

Keith J. Miller (No. 29885)

Aaron Duell (No. 33450)

 Assistant Attorneys General 

2005 N. Central Avenue

Phoenix, Arizona 85004

Telephone: (602) 542-5200

Drew.Ensign@azag.gov 

Attorneys for Defendant Mark Brnovich 

in his official capacity as Attorney General

and Proposed Intervenor-Defendant 

State of Arizona 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Mikkel Jordahl; Mikkel (Mik) Jordahl, 

P.C.,

Plaintiffs,

vs.

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.

Case No: 3:17-cv-08263-PCT-DJH

STATE’S REPLY TO RESPONSE IN 

SUPPORT OF ITS MOTION TO 

DISMISS

Oral Argument Requested
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................ ii

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

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

I. THE ACT DOES NOT APPLY TO PLAINTIFFS’ DESIRED BOYCOTT. 2

II. PLAINTIFFS’ CONDUCT IS NOT “INHERENTLY EXPRESSIVE” ........ 3

III. PLAINTIFFS’ FIRST AMENDMENT CHALLENGES FAIL..................... 6

A. The State’s Powerful Interests Overwhelm Any First Amendment Interest 

Asserted Here ................................................................................................... 6

B. The Act Is A Valid Viewpoint-Neutral, Anti-Discrimination Statute ............ 8

C. The Act’s Certification Requirement Does Not Mandate Speech.................. 9

D. The Act Merely Denies A Subsidy To Plaintiffs’ Conduct And Is Therefore 

Not An Unconstitutional Condition............................................................... 10

IV. THE ATTORNEY GENERAL MUST BE DISMISSED ............................. 11

CONCLUSION............................................................................................................ 11
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TABLE OF AUTHORITIES

CASES

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.

133 S. Ct. 2321 (2013)............................................................................................... 11

Board of Directors of Rotary Int’l v. Rotary Club of Duarte

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

Briggs & Stratton Corp. v. Baldrige

728 F.2d 915 (7th Cir. 1984)........................................................................................ 6

Crowder v. Kitagawa

81 F.3d 1480 (9th Cir. 1996)........................................................................................ 7

EEOC v. Wyoming

460 U.S. 226 (1983) .................................................................................................... 9

FCC v. League of Women Voters

468 U.S. 364 (1984) .................................................................................................. 11

FTC v. Superior Court Trial Lawyers Ass’n

493 U.S. 411 (1990) .................................................................................................... 6

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston

515U.S. 557 (1995) ..................................................................................................... 7

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

456 U.S. 212 (1982) ................................................................................................ 1, 5

Koontz v. Watson

No. 17-4099, 2018 WL 617894, at *1 (D. Kan. Jan. 30, 2018)..................................... 4

Lehman Bros. v. Schein

416 U.S. 386 (1974) .................................................................................................... 3

NAACP v. Claiborne Hardware Co.

458 U.S. 886 (1982) .................................................................................................... 5

Nat’l Elec. Mfrs. Ass’n v. Sorrell

272 F.3d 104 (2d Cir. 2001)....................................................................................... 10

Ohralik v. Ohio State Bar Ass’n

436 U.S. 447 (1978) .................................................................................................... 9

Pennhurst State Sch. & Hosp. v. Halderman

465 U.S. 89 (1984) .................................................................................................... 11

Pickup v. Brown

740 F.3d 1208 (9th Cir. 2014)...................................................................................... 3

Regan v. Taxation With Representation of Wash.

461 U.S. 540 (1983) .................................................................................................. 10
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Rumsfeld v. FAIR

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

Tennessee v. Lane

541 U.S. 509 (2004) .................................................................................................... 7

Todd v. United States

849 F.2d 365 (9th Cir. 1988)...................................................................................... 10

Wisconsin v. Mitchell

508 U.S. 476 (1993) ................................................................................................ 8, 9

STATUTES

29 U.S.C. § 621............................................................................................................... 9

A.R.S. § 35-393............................................................................................................... 2

OTHER AUTHORITIES

Brian Hauss, Kansas Doesn’t Even Try to Defend Its Israel Anti-Boycott Law, (last 

visited March 15, 2018), https://www.aclu.org/blog/kansas-doesnt-even-try-defend-itsisrael-anti-boycott-law................................................................................................. 4

Exec. Order No. 11,246 § 203 (1965)............................................................................ 10

Webster’s Third New International Dictionary (3d ed. 1993) ........................................ 11
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INTRODUCTION

Plaintiffs’ Complaint raises constitutional issues that this Court need not—and 

should not—reach. Plaintiffs’ desired boycott falls outside the scope of the Act, and 

Plaintiffs thus lack standing to challenge it. See Doc. 28 (“MTD”) at 8-14. Plaintiffs’ 

contrary arguments should be rejected as violating the Act’s text. And if the applicability 

of the Act is at all uncertain, this Court should certify that question or abstain, thereby 

permitting state courts to resolve those important, threshold issues of state law.

As to the merits, a long line of Supreme Court precedents, including in particular 

FAIR and Longshoreman, controls here. As in FAIR, the Act merely “affects what 

[Plaintiffs] must do ... not what they may or may not say.” Rumsfeld v. FAIR, 547 U.S. 

47, 60 (2006). And as in Longshoremen, this case is about a “political boycott” resulting 

from a political dispute with a foreign government’s policy. Int’l Longshoremen’s Ass’n, 

AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 214, 223-26 (1982). In response to these 

seminal decisions, Plaintiffs offer little more than facile distinctions, arguing that there 

was no “political boycott” in FAIR and that this case is unlike Longshoremen because 

here these is no boycott by a union here. But FAIR involved a boycott challenging the 

military’s exclusion of openly gay service-members—plainly a “political boycott”—and 

Plaintiffs offer no rationale for why union boycotts should enjoy less protection than a 

boycott by Plaintiffs’ company with nearly the same core international relations contours 

as in Longshoremen. Indeed, if anything the picketing in Longshoreman is far more 

expressive than the commercial purchasing decisions here. 

And even if the State could not prohibit boycotts against Israel directly, the First 

Amendment does not compel the State to subsidize such boycotts with public funds. 

Plaintiffs concede (at 24-25) that the State can deny subsidies to lobbying and 

striking/picketing—both highly expressive activities—but deny the same authority for 

commercial boycotts. There is no principled basis for such a distinction. And because 

the Act does not compel Plaintiffs’ to say anything or adopt any governmental position as 

its own, the Act does not impose any unconstitutional condition.
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Ultimately, this case boils down to a simple choice: this Court (1) can either 

follow the clear holdings of FAIR, Longshoreman, Briggs, FTC and Regan, or 

(2) embrace a maximalist reading of Claiborne that only one court has adopted in the 35

years since that case was decided—and even then only as what amounts to a default 

judgment, see infra at 4 n.2. Because the State’s argument is supported by the 

overwhelming weight of authority, Plaintiffs’ Complaint should be dismissed.

ARGUMENT

I. THE ACT DOES NOT APPLY TO PLAINTIFFS’ DESIRED BOYCOTT

Plaintiffs’ Opposition seeks to have this Court improperly—and gratuitously—

resolve constitutional issues that may easily be avoided by resolving threshold issues of 

state law. As explained previously, Plaintiffs’ desired boycotting conduct does not fall 

within the scope of the statute. See MTD at 8-14. 

Plaintiffs seek to gloss over the mismatch between their confirmed conduct and 

the statutory language. But while Plaintiffs argue that their boycott is “[i]n compliance 

with or adherence to calls for a boycott of Israel,” A.R.S. § 35-393(1)(a), it is undisputed 

that (1) Jordahl exclusively creates his own list of companies to boycott by himself, rather 

than relying on any other organization’s list, and that (2) Plaintiffs’ boycott differs 

substantially in its scope from those of organizations he claims to be inspired by. MTD 

at 12-13.1 Similarly, Plaintiffs attempt to gloss over the statutory requirement of a 

“boycott of Israel” by debating whether or not the territories are included in the definition 

of “Israel.” Opp. at 14. But that is not the point—Plaintiffs’ boycott targets companies 

they disagree with. MTD at 8-10. That boycott is neither exclusive to, nor 

comprehensive of, Israeli companies—and is thus not a boycott “of Israel.” See id. And 

Plaintiffs have no response to the State’s example of a sweatshop boycott merely 

 1

 Plaintiffs’ argument (at 13, 15) effectively rewrites the statutory language “in 

compliance with or adherence to” to say simply “in response to.” But that is not what the 

statute says and the difference is not “immaterial”: Plaintiffs’ boycott violates core 

elements of the referenced organizations’ boycotts. Indeed, while JVP call for boycotts 

of 100% of Israelis, Jordahl defies more than 90% of that call by exempting all Israelis 

outside the settlements. See goo.gl/HFC6iS.
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implicating Israel, which illustrates how Plaintiffs’ boycott falls outside the Act. Id. at 9.

The statutory language is clear that Plaintiffs’ boycott does not fall within the 

Act’s scope. But if there is any doubt, this Court should either certify that question or 

abstain under Pullman—particularly given the importance of the issues and the lack of 

any state court decision addressing the Act. See, e.g., Lehman Bros. v. Schein, 416 U.S. 

386, 391 (1974) (certification is “particularly appropriate in view of the novelty of the 

question and the great unsettlement of [state] law.”).

II. PLAINTIFFS’ CONDUCT IS NOT “INHERENTLY EXPRESSIVE”

Both Supreme Court and Ninth Circuit precedent make plain that “First

Amendment protection does not apply to conduct that is not ‘inherently expressive.’” 

MTD at 19 (quoting Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014)). Plaintiffs 

never dispute this. Thus, if Plaintiffs’ conduct is not “inherently expressive,” virtually all 

of Plaintiffs’ arguments fail on this threshold ground. And that is just the case.

Rumsfeld v. FAIR is perfectly clear that if (as here) someone has to explain with 

speech the expressive message of the conduct at issue, that conduct is not inherently 

expressive. In FAIR, the plaintiffs’ First Amendment expressive conduct claim failed 

because the “actions [at issue] were expressive only because [plaintiffs] accompanied

their conduct with speech explaining it.” 547 U.S. at 66. That is even more true here

than in FAIR. Plaintiffs offer no explanation for how anyone would be likely to perceive 

the expressive message of Plaintiffs’ purchase of an HP printer versus one from Canon or 

Lexmark as relating to Israeli governmental policies. Indeed, Plaintiffs effectively admit 

as much, explaining that: “These decisions are expressive because Mr. Jordahl

explicitly characterizes them as part of his participation in a BDS boycott.” Opp. at 16

(emphasis added). Plaintiffs’ admission is fatal under FAIR—because Plaintiffs’ conduct 

is purportedly expressive only because of Plaintiffs’ own characterization and 

explanatory speech, FAIR mandates dismissal. 547 U.S. at 66; MTD at 20-21.

Plaintiffs attempt to distinguish FAIR by contending that Plaintiffs’ boycott is a 

“political boycott,” while FAIR’s was not. Opp. at 7 (“Rumsfeld is inapplicable here 
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because political boycotts, including BDS boycotts, are inherently expressive.”). That is 

specious. The boycott in FAIR was patently political: the law schools disagreed

politically with the military’s “Don’t Ask, Don’t Tell” policy. That disagreement about 

governmental policy—which led to boycotting all military on-campus recruiting—was a 

“political boycott” under any reasonable understanding of that term. Nor does the 

decision in Koontz provide any basis for disguising FAIR. 2 And aside from contending

that FAIR did not involve a “political boycott,” Plaintiffs do not offer any other argument 

why FAIR does not apply here. It does, and is dispositive of Plaintiffs’ claims. 

It is equally clear that Longshoremen involved a “political boycott”—and, as here, 

a secondary boycott. There the boycott’s sole basis was the union’s political dispute with 

 2 Plaintiffs rely on Koontz v. Watson, No. 17-4099-DDC-KGS, 2018 WL 617894 (D. 

Kan. Jan. 30, 2018), in support of this distinction. But Koontz cannot save Plaintiffs’ 

claim. As an initial matter, Kansas’s brief in that case did not address the merits of the 

First Amendment claim there, or indeed ever use the words “First Amendment”—as 

Plaintiffs’ counsel gleefully has noted. See Brian Hauss, Kansas Doesn’t Even Try to 

Defend Its Israel Anti-Boycott Law available at https://www.aclu.org/blog/kansas-doesnteven-try-defend-its-israel-anti-boycott-law (last visited March 15, 2018). As Plaintiffs’ 

counsel aptly observed, “The state quite literally has no defense for the law’s First 

Amendment [alleged] violations.” Id. Because the merits of the First Amendment claim 

were not briefed, Koontz is thus best understood as being akin to a default judgment, 

rather than any meaningful adjudication of the First Amendment merits.

 In any event—and perhaps unsurprisingly given the completely one-sided nature of the 

briefing—Koontz profoundly misapprehended the governing law. Koontz simply 

asserted—without any explanation—that the political boycotts in FAIR and Koontz were 

somehow different: “Because the Kansas Law regulates inherently expressive conduct 

and forces plaintiff to accommodate Kansas's message, it is unlike the law at issue in 

Rumsfeld.” 2018 WL 617894, at *11. But the Koontz court did not identify any facets of 

Koontz’s boycott that were any different from FAIR. Notably, both involved boycotts 

and both were motivated by disagreements with governmental policy set forth by statute. 

Koontz does not provide a single intelligible or principled basis for distinguishing 

between the inherent expressiveness of political boycotts in FAIR and Koontz. Nor could 

it. Moreover, Koontz also does not attempt to address Longshoremen, FTC or Briggs 

(likely because none of those cases were brought to the court’s attention). 

 In addition, the Kansas statute applied to all state contracts “with an individual or 

company,” Kan. Stat. Ann. § 75–3740f(a), thus reaching consumer boycotts like Kootz’s. 

In contrast, Arizona’s act only applies to “companies,” and thus commercial boycotts. 

 It is also worth noting that even Koontz explained that “Conduct is inherently 

expressive when someone understands that the conduct is expressing an idea without any 

spoken or written explanation.” Id. Given Plaintiffs’ admission (at 16) that their boycott 

is expressive precisely (and only) because of how Jordahl has “characterized” it with 

speech, Plaintiffs’ boycott necessarily enjoys no protection even under Koontz.
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the U.S.S.R.’s policy in Afghanistan. But the Longshoremen union’s political boycott 

did not enjoy any First Amendment protection at all. 456 U.S. at 226-27. That was the 

case even though the Longshoremen’s boycott involved actual picketing—i.e., conduct 

that is far more expressive than printer purchases and other business supply decisions.

Plaintiffs (at 6) half-heartedly try to distinguish Longshoremen on the sole basis 

that “Plaintiffs are not engaged in a secondary labor boycott.” But Plaintiffs do not 

acknowledge the untethered, unsupported premise underlying that skeletal assertion—

that unions somehow enjoy lesser First Amendment rights than Jordahl’s business entity. 

Faced with the fact that the content of their boycott is not inherently expressive, 

Plaintiffs retreat to NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). Under 

Claiborne, Plaintiffs argue that all conduct that is part of a “political boycott” is always 

inherently expressive as a matter of law, even where it is obvious (as here) that the 

conduct is not inherently—or even modestly—expressive as a matter of fact. Claiborne 

cannot bear the weight Plaintiffs put upon it for four reasons.

First, Plaintiffs’ position that any conduct connected to “political boycotts” is 

inherently expressive is contrary to FAIR and would lead to absurd results. For example, 

Plaintiffs apparently contend that Plaintiffs’ purchase of an HP desktop computer that 

would be exclusively used in Jordahl’s personal office is “inherently expressive” even 

though no client has ever set foot in that office, Dep. 80:12-15, 47:2-48:11—and thus no 

one could even conceivably perceive whatever message the computer purports to convey. 

That is specious. Under that view, Plaintiffs’ continued use of an HP printer would 

similarly be “inherently expressive” even if the HP decal had fallen off or become 

illegible. But such a decal-less printer is not expressive at all, let alone inherently 

expressive. Similarly, by contending that all acts constituting a “political boycott” are 

inherently expressive as a matter of law, Plaintiffs’ position would presumably extend 

constitutional protection to acts like speeding on the way to a boycott meeting. While 

such an act lacks any expressive value, Plaintiffs’ position offers no basis for avoiding 

this absurd outcome.
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FAIR rejected such bootstrapping and judged whether each relevant act was 

inherently expressive. 547 U.S. at 64-66. Plaintiffs cannot simply cry “political boycott” 

and thereby hand-wave off any analysis of how expressive the acts in question truly are.

Second, Claiborne addressed a consumer boycott by individuals, rather than a 

commercial boycott by businesses. See MTD at 28. Plaintiffs contend (at 4) that the 

commercial nature of the regulated boycotts is irrelevant. But Plaintiffs themselves

attempt to distinguish Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984),

on the commercial nature of the conduct at issue there. Opp. at 6-7. Moreover, the 

Supreme Court’s decision in FTC v. Superior Court Trial Lawyers Ass’n specifically 

declined to extend protection to a political boycott because of the commercial nature and 

interest of the boycott and its participants. 493 U.S. 411, 426 (1990).

Third, the Claiborne boycott “sought only the equal respect and equal treatment to 

which [the African-American boycotters] were constitutionally entitled.” FTC, 493 U.S. 

at 426. Contrary to Plaintiffs’ suggestion (at 5), this distinction was not invented by the 

State but is rather a direct quotation from the Court’s decision in FTC—which 

substantially relied on the fact that the Claiborne boycott sought only to vindicate 

constitutional rights in holding that the political boycott in FTC was not protected under 

the First Amendment. 493 U.S. at 426-27. 

Fourth, Longshoremen is far closer to the present circumstances than Claiborne: 

involving a commercial boycott aimed against a foreign nation due to disagreements with 

its policies, rather than a domestic consumer boycott aimed at securing constitutional 

rights to which the boycotters were already entitled.

III. PLAINTIFFS’ FIRST AMENDMENT CHALLENGES FAIL

Even if Plaintiffs’ conduct were inherently expressive, Plaintiffs’ First 

Amendment claim would still fail. 

A. The State’s Powerful Interests Overwhelm Any First Amendment 

Interest Asserted Here

Plaintiffs make the categorical and absolutist claim (at 10) that “Political boycotts 
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cannot be regulated.” That is demonstrably false. The outcomes of FAIR, FTC, and 

Longshoremen—all of which involved political boycotts—alone demonstrate that there is 

nothing talismanic about the characterization “political boycott.” Political boycotts have 

actually fared poorly in federal courts. Indeed, aside from Koontz—effectively a default 

judgment on the First Amendment issues, supra at 4 n.2—Plaintiffs have cited no case 

that has ever applied Claiborne to strike state regulation of a political boycott.

Even if Plaintiffs’ boycotting conduct were inherently expressive, the State has 

explained how its powerful interests in regulating commerce and eliminating invidious, 

status-based discrimination in the buying and selling of goods are more than sufficient to 

justify any burden on Plaintiffs’ First Amendment rights. MTD at 22-25. 

Plaintiffs offer a smattering of skeletal reasons why the State’s interests are 

insufficient here, but none of them withstands scrutiny. First, Plaintiffs argue (at 22) that 

subsection (A) of the statute shows that the statute is not a valid anti-discrimination 

statute because subsection (B) already addresses discrimination. But subsection (B) only 

addresses specific discriminatory intent, while subsection (A) address conduct that is 

likely to be discriminatory in effect. Statutes banning discriminatory effect have been 

widely upheld against constitutional challenge.3 Second, Plaintiffs argue antidiscrimination statutes must yield to the First Amendment, citing Hurley v. Irish-Am. 

Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568 (1995).

4

 But Hurley 

involved forced inclusion into an inherently expressive gathering (a parade), and did not 

involve regulation of commercial conduct at all.

5

Plaintiffs conclude (at 23) with a parade of horribles under which the State 

 3

 For example, the Americans with Disabilities Act (“ADA”) prohibits both intentional 

discrimination and discriminatory effect. See Crowder v. Kitagawa, 81 F.3d 1480, 1483-

84 (9th Cir. 1996). But that hardly renders the ADA an unconstitutional antidiscrimination statute. See, e.g., Tennessee v. Lane, 541 U.S. 509, 533–34 (2004).

4 Plaintiffs also argue the Act’s anti-discrimination provisions are impermissibly contentor viewpoint-based, which fails for the reasons discussed next. See infra at 8-9. 5

 Plaintiffs contend (at 20-21) that the Act is not narrowly tailored. That argument 

appeared in neither their initial motion nor their Complaint, and is thus waived. It further 

fails because strict scrutiny does not apply. To the extent that strict scrutiny or O’Brien 

would apply, the applicable requirements are satisfied. See MTD at 25.
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supposedly “could have invoked its antidiscrimination interests to suppress the campaign 

to boycott apartheid South Africa.” But Plaintiffs ignore that their arguments would 

necessarily mean the State would have been powerless to require that government

contractors boycott apartheid South Africa (as numerous states did).6 Nor do Plaintiffs 

answer the State’s argument that Plaintiffs’ position could effectively unravel all 

sanctions laws on First Amendment grounds. See MTD at 28-29 n.19. Plaintiffs thus 

never genuinely grapple with the obvious consequences of accepting their arguments.

B. The Act Is A Valid Viewpoint-Neutral, Anti-Discrimination Statute

Plaintiffs also contend the Act is impermissible content-based or viewpoint-based

regulation of speech. That argument fails as an initial matter because Plaintiffs’ conduct 

is not inherently expressive. But even if that were otherwise, it is well-established that 

anti-discrimination laws “make[] no distinctions on the basis of the organization’s 

viewpoint.’” Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 

(1987). Indeed, “[F]ederal and state antidiscrimination laws ... [are] permissible contentneutral regulation[s] of conduct.” Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993)

(emphasis added). That result follows inexorably from the fact that discrimination is 

banned regardless of the underlying viewpoint (e.g., actual discriminatory motive or 

trying to curry favor with bigoted customers). See MTD at 24 & n.13. The Act here, for 

example, would apply equally to a Jewish individual originally from Israel who is

boycotting Israel because he believes the Israeli governmental policy has been too soft 

and that Israel should never have withdrawn its occupation of Gaza.

Plaintiffs do not appear to challenge this general and deep-rooted principle of the 

constitutionality and viewpoint-neutrality of anti-discrimination laws. But they argue the 

Act should be the first anti-discrimination statute ever struck down as impermissibly 

content- or viewpoint-based because the Act “applies to boycotts of only one country.”

Opp. at 2. Anti-discrimination laws, however, have never been constitutionally suspect 

 6

 Moreover, because any such law would obviously target just one country, Plaintiffs 

would apparently condemn it on that basis as well. Opp. at 2.
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for banning only certain types of discrimination. The federal government may, for 

example, permissibly ban discrimination against race but not height. That might 

conceivably be content-based regulation of discrimination, but that has never presented a 

First Amendment concern. See, e.g., Mitchell, 508 U.S. at 487. 

Indeed, Congress has only prohibited some types of age discrimination: i.e., 

discrimination against the old but not the young. See 29 U.S.C. § 621. In doing so, the 

Act might be considered viewpoint-based: endorsing the “viewpoint” that discrimination 

against the old is bad but discrimination against the young is fine. But the ADEA has 

repeatedly survived constitutional challenge. See, e.g., EEOC v. Wyoming, 460 U.S. 226

(1983). The same result should obtain here: the Act’s focus on prohibiting discrimination 

against Israelis and not other nationalities raises no First Amendment concerns.

Even more closely on point, the statute in FAIR could easily be characterized as 

content- or viewpoint-based. It was quite obviously targeted at a single viewpoint: those 

opposing the military’s policy of excluding gay service-members. 547 U.S. at 51. But 

that argument—which Plaintiffs’ counsel specifically made in FAIR7—obviously did not 

carry the day, or even secure the vote of a single Justice.

C. The Act’s Certification Requirement Does Not Mandate Speech

Plaintiffs also now assert that the mere act of signing a certification under the Act 

constitutes compelled speech. Opp. at 11-17. Not so.

The act of signing a certification is merely incidental to the regulation of conduct 

by the Act. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[T]he State does 

not lose its power to regulate commercial activity ... whenever speech is a component of 

that activity.”). FAIR makes that much clear: “Congress, for example, can prohibit 

employers from discriminating in hiring on the basis of race. The fact that this will 

require an employer to take down a sign reading ‘White Applicants Only’ hardly” 

presents a constitutional issue. 547 U.S. at 62. Plaintiffs’ signature on the certification is 

 7

 See Brief of ACLU et. al, FAIR, 2005 WL 2376813, at *15 (Sept. 21, 2005) (“[T]he 

Solomon Amendment ... regulates speech ... in a viewpoint discriminatory manner.”).
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even more attenuated from actual speech than the “White Applicants Only” sign.

More generally, the government constantly and permissibly requires similar 

certifications. Indeed, “Innumerable federal and state regulatory programs require the 

disclosure of ... commercial information.” Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 

104, 116 (2d Cir. 2001). Individuals, for example, must file tax return that “compel” 

them to state their income, but that hardly makes a compelled speech claim. Cf. Todd v. 

United States, 849 F.2d 365, 370 (9th Cir. 1988). Nor do tax returns compel taxpayers to 

endorse the underlying tax policy, rates and equities; only to certify the statements in the 

tax return are truthful. So too with Plaintiffs’ concern (at 16) that signing the certification 

“require[s] Mr. Jordahl to endorse the State’s message of opposition to BDS.” 

Similarly, the federal and state governments regularly require recipients of public 

funds to certify that they do not discriminate on the basis of race, gender, etc. See, e.g., 

Exec. Order No. 11,246 § 203 (1965). Such certifications neither compel any speech nor 

impermissibly require government contractors to endorse the government’s position that 

discrimination should be prohibited. They merely (as here) require a certification of what 

conduct contractors are engaged in. Accepting Plaintiffs’ arguments here could thus 

severely hamper governments’ ability to enforce their anti-discrimination laws and to 

prevent public funds from being spent on companies engaged in invidious discrimination.

D. The Act Merely Denies A Subsidy To Plaintiffs’ Conduct And Is 

Therefore Not An Unconstitutional Condition

Even if the State could not directly prohibit boycotts against Israel, the First 

Amendment does not compel the State to subsidize such boycotts with public funds. 

Indeed, even if engaging in political boycotts were a fundamental right, “a legislature’s 

decision not to subsidize the exercise of a fundamental right does not infringe the right.” 

Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983).

Notably, Plaintiffs’ themselves admit (at 25-26 n.10) that “[f]unding conditions 

requiring an entity to comply with antidiscrimination laws primarily regulate unprotected 

conduct,” and thus do not violate the First Amendment. Plaintiffs appear to contend that 
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the Act is somehow not an “antidiscrimination law,” but it plainly is. And just as 

requiring government contractors not to discriminate on the basis of race and gender does 

not interfere with contractors’ ability to express their views about whether such 

discrimination is bad or good, the Act similarly does not “requir[e] contractors to 

accommodate a government message or disavow protected expression.” Opp. at 26 n.10.

Plaintiffs’ reliance on Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 133 

S. Ct. 2321, 2328 (2013), is misplaced. As previously explained, the Act (unlike the 

Open Society statute) does not require anyone to adopt the State’s policy position as its 

own official position; it merely restricts commercial conduct. See MTD at 30. Similarly, 

Plaintiffs reliance on FCC v. League of Women Voters, 468 U.S. 364 (1984), is misplaced 

because (1) the Act does not prevent Plaintiffs from actually speaking about any topic 

(unlike FCC, where the government imposed a blanket ban on all editorializing) and (2) 

because Plaintiffs could simply form another business entity performing Plaintiffs’ nongovernmental contracts, which could boycott Israel.8

IV. THE ATTORNEY GENERAL MUST BE DISMISSED

Plaintiffs notably do not offer any answer to the State’s arguments that claims 

asserted against Defendant Brnovich are unripe and lack Article III standing; nor that 

Plaintiffs have not alleged any basis for liability against him. Compare MTD at 33 with 

Opp. at 28. Those concessions alone mandate dismissal against the Attorney General.9

CONCLUSION

For the foregoing reasons, the State’s Motion to Dismiss should be granted.

 8 Contrary to Plaintiffs’ contention (at 26 n.11), “affiliate” can simply mean

“subsidiary,” Webster’s Third New International Dictionary (3d ed. 1993), thus 

permitting Jordahl to establish a new PC for his non-governmental contracts, which 

would not be an “affiliate”/subsidiary of Mikkel (Mik) Jordahl, P.C. But even if that 

were otherwise, this Court could sever that “affiliate” provision—and that provision 

alone—to the extent that it could somehow create an unconstitutional condition.

9 The Attorney General is also immune because even the hypothetical actions he could 

take would not be directed against Plaintiffs. Complaint ¶ 8. And because Ex parte 

Young only strips state officials of immunity when the officer “acts unconstitutionally,”

and the Attorney General has not taken any relevant action, the Ex parte Young exception 

does not apply. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 (1984).
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Respectfully submitted this 15th day of March, 2018.

MARK BRNOVICH

ATTORNEY GENERAL

By: s/ Drew C. Ensign

Drew C. Ensign (No. 25463)

Oramel H. (O.H.) Skinner (No. 32891)

Brunn (Beau) W. Roysden III (No. 28698)

Evan G. Daniels (No. 030624)

Keith J. Miller (No. 29885)

Aaron M. Duell (No. 033450)

Attorneys for Defendant Mark Brnovich in his 

official capacity as Attorney General and 

Proposed Intervenor-Defendant State of 

Arizona 
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CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of March, 2018, I caused the foregoing 

document to be electronically transmitted to the Clerk’s Office using the CM/ECF 

System for Filing and transmittal of a Notice of Electronic Filing to the following 

CM/ECF registrants:

Kathleen E. Brody

Darrell L. Hill

ACLU Foundation of Arizona

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

kbrody@acluaz.org

dhill@acluaz.org

Brian Hauss

Vera Eidelman

Ben Wizner

Speech, Privacy & Technology Project

125 Broad Street, 18th Floor

New York, NY 10004

Telephone: (212) 549-2500

bhauss@aclu.org

veidelman@aclu.org

bwizner@aclu.org

ACLU Foundation

 s/ Drew C. Ensign

Attorneys for Defendant Mark Brnovich in his official capacity as Attorney General and 

Proposed Intervenor-Defendant State of Arizona