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Kathleen E. Brody, AZ Bar No. 026331 

Darrell L. Hill, AZ Bar No. 030424 

ACLU Foundation of Arizona 

P.O. Box 17148 

Phoenix, AZ 85011 

Telephone: (602) 650-1854 

kbrody@acluaz.org 

dhill@acluaz.org 

Brian Hauss (pro hac vice) 

Vera Eidelman (pro hac vice) 

Ben Wizner (pro hac vice) 

ACLU Foundation 

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 

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, P.C.,

Plaintiffs, 

Mark Brnovich, Arizona Attorney 

General; Jim Driscoll, Coconino County 

Sheriff; Matt Ryan, Coconino County Jail 

District Board of Directors Member; 

Lena Fowler, Coconino County Jail 

District Board of Directors Member; 

Elizabeth Archuleta, Coconino County 

Jail District Board of Directors Member; 

Art Babbott, Coconino County Jail 

District Board of Directors Member; Jim 

Parks, Coconino County Jail District 

Board of Directors Member, all in their 

official capacities, 

Defendants. 

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CV17-08263-DJH

PLAINTIFFS’ COMBINED 

RESPONSE TO THE STATE’S 

MOTION TO DISMISS AND REPLY 

IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR PRELIMINARY 

INJUNCTION, WITH 

ACCOMPANYING DECLARATION 

Case 3:17-cv-08263-DJH Document 39 Filed 02/15/18 Page 1 of 36
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TABLE OF CONTENTS 

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

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

ARGUMENT .................................................................................................................. 3

I. The First Amendment Protects Participation in Political Boycotts. ......... 3

A. Claiborne Hardware Protects Political Boycotts 

Like the One at Issue Here. ............................................................ 3

B. The State’s Other Cases Are Inapposite. ....................................... 6

II. The Certification Requirement Penalizes Expression 

Based on Content and Viewpoint. ............................................................. 8

III. The Certification Requirement Compels Speech. ................................... 11

A. The Certification Requirement Imposes an Ideological 

Litmus Test. .................................................................................. 11

B. The Certification Requirement Applies to 

Mr. Jordahl’s Boycott................................................................... 13

C. The Certification Requirement Forces Mr. Jordahl to 

Disown His Boycott. .................................................................... 16

IV. The Certification Requirement Restricts Contractor Expression. ........... 17

V. The State Fails to Justify the Certification Requirement. ....................... 20

VI. The Certification Requirement Is an Unconstitutional Condition. ......... 23

VII. Plaintiffs Are Suffering Irreparable Harm. ............................................. 26

VIII. A Broad Preliminary Injunction Is Necessary to Prevent Further 

Harm to Contractors’ First Amendment Rights. ..................................... 27

IX. The Attorney General Is a Proper Defendant. ......................................... 28

CONCLUSION ............................................................................................................ 28

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TABLE OF AUTHORITIES 

Cases

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) .............. 17, 20, 24, 25

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) ........................................ 4 

Baggett v. Bullitt, 377 U.S. 360 (1964)..................................................................................... 19, 21 

Baird v. State Bar of Arizona, 401 U.S. 1 (1971) ............................................................... 12, 13, 20 

Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668 (1996) ............................................................. 11, 24 

Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984) ................................................. 6 

Christian Legal Soc’y v. Martinez, 561 U.S. 661 (2010) ............................................................... 26 

Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................................. 4, 18 

Clairmont v. Sound Mental Health, 632 F.3d 1091 (9th Cir. 2011) ............................................... 24 

Cole v. Richardson, 405 U.S. 676 (1972) ................................................................................. 11, 13 

Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) .................................................... 15 

Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) .................................................................................. 27 

Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978) .................................. 28 

Eagle Point Educ. Ass’n/SOBC/OEA v. Jackson Cty. Sch. Dist. No. 9, --- F.3d ----, 

 No. 15-35705, 2018 WL 560527 (9th Cir. Jan. 26, 2018) ............................................................ 9 

Eastern R.R. Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127 (1961) ................. 5 

Edenfield v. Fane, 507 U.S. 761 (1993) ................................................................................... 21, 26 

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................ 26, 27 

FCC v. League of Women Voters, 468 U.S. 364 (1984). .......................................................... 25, 26 

FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990) .................................................. 3 

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) ............... 16, 23 

International Longshoremen’s Association, AFL-CIO v. Allied International, Inc., 

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 456 U.S. 212 (1982) ...................................................................................................................... 6 

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

 968 F.2d 286 (2d Cir. 1992)........................................................................................................ 23 

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ................................................................................ 27 

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ....................................................... 28 

Koontz v. Watson, --- F. Supp. 3d ----, Case No. 17-4099-DDC-KGS, 2018 WL 617894 

 (D. Kan. Jan. 30, 2018) ........................................................................................................ passim 

Lane v. Franks, 134 S. Ct. 2369 (2014) .......................................................................................... 18 

Lyng v. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW, 

 485 U.S. 360 (1988) .............................................................................................................. 25, 26 

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................................. 5

NAACP v. Button, 371 U.S. 415 (1963) .................................................................................... 19, 20 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ..................................................... passim 

Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) ....................................................... 25 

O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) ....................................... 11, 24 

Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 1374 (9th Cir. 1985) ................... 27 

Pickering v. Board of Education, 391 U.S. 563 (1968) .................................................................. 17 

Planned Parenthood of Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016) ................. 28 

Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004) ............................... 28 

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) ....................................................... 9 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .............................................................................. 22 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)........................................................................ 9, 20

Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) .................................. 24, 25 

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ................................................................................ 22 

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Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006) ........................... 7, 24 

Rust v. Sullivan, 500 U.S. 173 (1991) ............................................................................................. 25 

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995) ........................................................................... 20, 21 

Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) .............................................. 26 

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) ............ 9 

Speiser v. Randall, 357 U.S. 513 (1958) ................................................................................... 12, 13 

Stenberg v. Carhart, 530 U.S. 914 (2000) ...................................................................................... 19 

Teague v. Reg’l Comm’r of Customs, 404 F.2d 441 (2d Cir. 1968) ............................................... 10 

Texas v. Johnson, 491 U.S. 397 (1989) ................................................................................ 9, 10, 18 

United States v. Am. Library Ass’n, Inc., 539 U.S. 194 (2003) ...................................................... 25 

United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) .............................................. 17 

United States v. O’Brien, 391 U.S. 367 (1968) .............................................................................. 10 

United States v. Swisher, 811 F.3d 299 (9th Cir. 2016).................................................................. 10 

Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376 (2d Cir. 2000)............................................ 19 

Statutes

19 U.S.C. § 4452 ................................................................................................................. 7 

50 U.S.C. § 4607 ................................................................................................................. 6 

A.R.S. § 35-301 ................................................................................................................. 28 

A.R.S. § 35-393 ................................................................................................. 1, 13, 21, 25 

A.R.S. § 38-341 ................................................................................................................. 28 

A.R.S. § 38-345 ................................................................................................................. 28 

A.R.S. § 39-393 ................................................................................................................. 21 

A.R.S. § 41-194 ................................................................................................................. 28 

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Other Authorities

S. 720, 115th Cong. § 4 (2017) .............................................................................................7 

2016 Ariz. Sess. Laws ch. 46, § 2 .........................................................................................8 

Hearing on HB 2617 Before the S. Fin. Comm., 

 52nd Leg. 2nd Regular Sess. (Ariz. 2016).................................................................. 8, 21 

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INTRODUCTION 

Plaintiffs Mikkel Jordahl and Mikkel (Mik) Jordahl, P.C. challenge the 

Certification Requirement implemented by A.R.S. § 35-393 et seq. (“the Act”), which 

requires all state and local contractors in Arizona to certify that they are not participating 

in boycotts of Israel. A federal district court in Kansas recently entered a preliminary 

injunction against a similar certification requirement, holding that the law imposed a 

“plainly unconstitutional choice” on that state’s contractors. Koontz v. Watson, --- F. 

Supp. 3d ----, Case No. 17-4099-DDC-KGS, 2018 WL 617894, at *13 (D. Kan. Jan. 30, 

2018). Arizona’s Certification Requirement imposes the same unconstitutional choice on 

Plaintiffs. 

Plaintiffs’ argument is straightforward: The First Amendment protects the right to 

participate in political boycotts, including Plaintiffs’ boycott of territories controlled by 

Israel. The Certification Requirement facially violates the First Amendment in three 

respects. First, the Certification Requirement is both content- and viewpointdiscriminatory because it applies only to boycotts of one country, Israel. Indeed, the State 

and its amici candidly acknowledge that the Certification Requirement is targeted 

“squarely” at a particular political movement, the Boycott, Divestment, and Sanctions 

(“BDS”) movement. Second, by forcing state contractors to certify that they are not 

participating in these boycotts, the Certification Requirement unconstitutionally requires 

plaintiffs to disavow participation in protected political activity. Third, the Certification 

Requirement unconstitutionally prohibits every state and local contractor from 

participating in protected boycotts of Israel, and chills related advocacy. Plaintiffs’ 

success on any one of these theories would require a preliminary injunction. 

The State is wrong that the Certification Requirement does not apply to Plaintiffs. 

Mr. Jordahl is participating in a BDS boycott of companies supporting Israel’s 

occupation of the Palestinian territories, including companies operating in Israeli 

settlements in the West Bank. The Certification Requirement applies to boycotts of Israel 

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or territories controlled by Israel, which encompasses the West Bank. Mr. Jordahl wants 

his one-person law firm, Plaintiff Mikkel (Mik) Jordahl, P.C. (the “Firm”), to participate 

in his boycott. However, because Mr. Jordahl signed the required certification in his 

Firm’s 2016 contract with the Coconino County Jail District (“County”), his Firm is 

prohibited from boycotting. Even if that certification did not apply, Plaintiffs have 

standing and their claims are ripe because Mr. Jordahl cannot renew his Firm’s contract 

with the County unless he again signs the facially unconstitutional certification. 

The State’s merits arguments fare no better. It relies on a trio of cases to argue that 

the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. does not, in fact, 

protect political boycotts. But none of the State’s cases concern a political boycott like 

the one protected in Claiborne. The State also argues that its interest in regulating 

commercial conduct and preventing discrimination justify the Certification Requirement. 

But the State fails to show that the Certification Requirement is narrowly tailored to these 

interests: It concedes that the Certification Requirement is targeted at politically 

motivated BDS boycotts, not purely commercial conduct. And the State cannot invoke its 

interest in preventing discrimination to justify a law that directly targets political 

boycotts, particularly when the law applies to boycotts of only one country. Finally, the 

State argues that the Certification Requirement is a permissible condition on government 

funding. But the Certification Requirement impermissibly requires contractors to 

affirmatively disavow all participation in boycotts of Israel, even if those activities occur 

outside the scope of their government contracts. 

Plaintiffs are entitled to a broad preliminary injunction to prevent further 

irreparable harm to their First Amendment rights and the First Amendment rights of other 

contractors throughout the state. Further, Defendant Brnovich should not be dismissed, 

given the pivotal role he plays in enforcing the Certification Requirement. 

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ARGUMENT 

I. The First Amendment Protects Participation in Political Boycotts. 

A. Claiborne Hardware Protects Political Boycotts Like the One at Issue 

Here. 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), firmly established the 

constitutional right to participate in political boycotts. In that case, the Supreme Court 

held that the First Amendment protected an NAACP-organized boycott of white-owned 

businesses in Port Gibson, Mississippi. Id. at 915. The Court acknowledged the State’s 

“broad power to regulate economic activity,” but did “not find a comparable right to 

prohibit peaceful political activity such as that found in the [NAACP] boycott.” Id. at 

913. As the Court explained, “[t]he black citizens named as defendants in this action 

banded together and collectively expressed their dissatisfaction with a social structure 

that had denied them rights to equal treatment and respect,” a practice “deeply embedded 

in the American political process.” Id. at 907 (citation and internal quotation marks 

omitted). The Court identified “peaceful political” boycotts as a form of “expression on 

public issues,” which “has always rested on the highest rung of the hierarchy of First 

Amendment values.” Id. at 913 (citation and internal quotation marks omitted). 

Claiborne also established the principles for distinguishing protected political 

boycotts from unprotected economic boycotts. Given the state’s interest “in certain forms 

of economic regulation,” the Court held that it could curtail “[t]he right of business 

entities to ‘associate’ to suppress competition,” and that other “[u]nfair trade practices 

may be restricted,” along with “secondary boycotts and picketing by labor unions.” Id. at 

912 (citations omitted); see also id. at 915 n.49 (noting that the Court “need not decide in 

this case the extent to which a narrowly tailored statute designed to prohibit” these types 

of proscribable boycotts, or other boycotts “designed to secure aims that are themselves 

prohibited by a valid state law,” may incidentally restrict associated First Amendment 

activity); accord FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 427 (1990); 

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Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 (1988). On the 

other hand, Claiborne established that a “nonviolent, politically motivated boycott” is 

“constitutionally protected.” 458 U.S. at 915. 

“The conduct prohibited by the [Arizona] law is protected for the same reason as 

the boycotters’ conduct in Claiborne was protected.” Koontz, 2018 WL 617894, at *9. 

Plaintiffs and other BDS participants “have banded together to express, collectively, their 

dissatisfaction with Israel and to influence governmental action. Namely, [the boycott] 

organizers have banded together to express collectively their dissatisfaction with the 

injustice and violence they perceive, as experienced by both Palestinian and Israeli 

citizens.” Id. Thus, “[Plaintiffs] and others participating in this boycott of Israel seek to 

amplify their voices to influence change, as did the boycotters in Claiborne.” Id. Like the 

Claiborne boycott, BDS campaigns apply economic pressure to make “government and 

business leaders comply with a list of demands for equality and racial justice.” Allied 

Tube, 486 U.S. at 508. Plaintiffs and other BDS participants do not “stand to profit 

financially from a lessening of competition in the boycotted market,” id., nor do they 

seek to achieve ends prohibited by any valid state or federal law. BDS campaigns are 

“peaceful acts of protest and based on political beliefs.” Dep. 173:22-173:23. 

Participation in these boycotts is a form of political expression. Dep. 173:24-174:2. 

The State’s attempts to dispel Claiborne are unavailing. See State Br. at 28–29. 

First, the State provides no authority for its argument that Claiborne applies only to 

individual boycotts. The Supreme Court has expressly “rejected the argument that 

political speech of corporations or other associations should be treated differently under 

the First Amendment simply because such associations are not natural persons.” Citizens 

United v. FEC, 558 U.S. 310, 343 (2010) (citation and internal quotation marks omitted). 

Indeed, the Court supported its First Amendment holding in Claiborne by drawing an 

extended analogy to the right of business organizations to lobby for legislation. 

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Claiborne, 458 U.S. at 913–14 (discussing Eastern R.R. Presidents Conference v. Noerr 

Motor Freight Inc., 365 U.S. 127 (1961)). 

Second, the State contends that “Claiborne’s central holding invalidated 

Mississippi’s attempt to impose liability on the NAACP purely for speech.” State Br. at 

28. But, as discussed above, Claiborne also “held explicitly” that “[t]he First Amendment 

protects the right to participate in a boycott.” Koontz, 2018 WL 617894, at *8 (citing 

Claiborne, 458 U.S. at 907). The Supreme Court’s analysis of the incitement issue, to 

which the State refers, was expressly founded on the conclusion that the boycott itself 

was constitutionally protected. See 458 U.S. at 915 (“The fact that such [boycott] activity 

is constitutionally protected, however, imposes a special obligation on this Court to 

examine critically the basis on which liability was imposed.”). 

Finally, the State asserts that Claiborne applies only to boycotts seeking to assert 

constitutional rights. That has never been the test for determining whether boycotts—or 

any other forms of political expression—are constitutionally protected. See Koontz, 2018 

WL 617894, at *9. The Claiborne boycott was broadly political; it was not simply a 

demand for the local government to respect constitutional rights. It was directed at “both 

civic and business leaders,” 458 U.S. at 907, and “sought to bring about political, social, 

and economic change,” id. at 911. In fact, the trial judge declared the boycott unlawful 

partly because it targeted business owners in no position to address the boycott 

participants’ legal rights. Id. at 891–92. The Supreme Court rejected this framing, instead 

holding that the boycott was protected as “peaceful political activity” and “expression on 

public issues.” Id. at 913. The State’s argument—that the First Amendment protects only 

those boycotts vindicating constitutional rights—ignores our “profound national 

commitment to the principle that debate on public issues should be uninhibited, robust, 

and wide-open,” as well as the Supreme Court’s clear instruction that “constitutional 

protection does not turn upon ‘the truth, popularity, or social utility of the ideas and 

beliefs which are offered.’” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 271 (1964). 

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B. The State’s Other Cases Are Inapposite. 

The State invokes a grab bag of other precedents, none of which apply. It argues 

that the Supreme Court “rejected a First Amendment claim strikingly similar to this case” 

in International Longshoremen’s Association, AFL-CIO v. Allied International, Inc., 456 

U.S. 212 (1982). State Br. at 15. But Longshoremen reflects an exception, not the rule. 

The case concerned a labor union’s refusal to serve ships carrying Russian cargo. 456 

U.S. at 214–15. The Supreme Court held that this constituted an illegal secondary boycott 

under the National Labor Relations Act, id. at 218–226, and that the First Amendment 

does not protect such boycotts, id. at 226–27. A few months later, in Claiborne, the Court 

held that although the government cannot prohibit political boycotts, “[s]econdary 

boycotts and picketing by labor unions may be prohibited, as part of ‘Congress’ striking 

of the delicate balance between union freedom of expression and the ability of neutral 

employers, employees, and consumers to remain free from coerced participation in 

industrial strife.’” 458 U.S. at 912 (emphasis added) (citing, inter alia, Longshoremen). 

Id. Plaintiffs are not engaged in a secondary labor boycott. 

The State’s reliance on Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th 

Cir. 1984), as the “authoritative and final word on the constitutionality of anti-Israel 

boycott prohibitions,” State Br. at 17, is equally misplaced. In Briggs, two companies 

doing business in the Arab League challenged Export Administration Act (“EAA”) 

provisions prohibiting U.S. companies from participating in government-led boycotts of 

countries friendly to the United States. The plaintiffs “concede[d] that their desire to 

answer the questionnaires [verifying their boycott participation] is motivated by 

economics: . . . [they] hope[d] to avoid the disruption of trade relationships that depend 

on access to the Arab states.” Briggs, 728 F.2d at 917. The Seventh Circuit analyzed the

companies’ claims under the commercial speech doctrine, declining to extend them the 

constitutional protections for political expression. Id. 917–18. Claiborne did not apply, 

because the companies did not seek to participate in the boycott for political reasons. 

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Here, there is no dispute that Plaintiffs’ boycott is politically motivated, and therefore 

constitutionally protected. See Koontz, 2018 WL 617894, at *8–*9.1

The State also leans heavily on Rumsfeld v. Forum for Academic & Institutional 

Rights, Inc., 547 U.S. 47 (2006), incorrectly arguing that “virtually every sentence of the 

Supreme Court’s First Amendment reasoning cuts against Plaintiffs here.” State Br. at 19. 

Rumsfeld rejected a First Amendment challenge to the Solomon Amendment—which 

allows the Department of Defense to deny federal funds to law schools that prohibit or 

impede military representatives from participating in on-campus recruiting—on the 

ground that providing equal access to military recruiters “is not inherently expressive.” 

547 U.S. at 66. The Court further concluded that the government could compel law 

schools that “send[] scheduling e-mails for other recruiters to send one for a military 

recruiter,” because this form of compelled speech “is plainly incidental to the Solomon 

Amendment’s regulation of conduct.” Id. at 62. As Koontz recognized, Rumsfeld is 

inapplicable here because political boycotts, including BDS boycotts, are inherently 

expressive. See Koontz, 2018 WL 617894, at *11 (“It is easy enough to associate 

plaintiff’s conduct with the message that the boycotters believe Israel should improve its 

treatment of Palestinians.” (citing Claiborne, 458 U.S. at 907–08)). 

 

1

 The State is also flatly wrong in asserting that the absence of First Amendment 

challenges to the EAA demonstrates the constitutionality of anti-BDS laws like the one at 

issue here. State Br. at 17. The relevant provisions in the EAA prohibit U.S. companies 

from complying with a foreign government’s request for boycott. See 50 U.S.C. § 4607. 

The Israel Anti-Boycott Act bill in Congress would extend those provisions to requests 

for boycott by international governmental organizations. See S. 720, 115th Cong. § 4(b) 

(2017). Neither the EAA nor the Israel Anti-Boycott Act applies to boycotts called for by 

non-governmental entities, such as Jewish Voice for Peace (“JVP”), the Evangelical 

Lutheran Church in America (“ELCA”), or the BDS National Committee. 

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II. The Certification Requirement Penalizes Expression Based on Content 

and Viewpoint. 

The Certification Requirement’s constitutionality, and the harms it inflicts on 

Plaintiffs, must be evaluated in light of the law’s fundamental purpose. See Pls.’ Opening 

Br. at 12–13. The Certification Requirement applies to boycotts involving precisely one 

country: Israel. As the State acknowledges, and as its amici agree, the Act and the 

Certification Requirement are “squarely addressed” at the “Boycott, Divest [sic] and 

Sanctions (‘BDS’) movement.” State Br. at 1; see also id. at 5, 9, 10, 30, 32. The State 

identifies BDS boycotts as “politically motivated actions that penalize or otherwise limit 

commercial relations specifically with Israel.” Id. at 4 (quoting 19 U.S.C. § 4452). The 

Act’s legislative findings “expressly reference federal policy of ‘examining a company’s 

promotion or compliance’ with BDS campaigns in ‘awarding grants and contracts.’” 

State Br. at 5 (quoting 2016 Ariz. Sess. Laws ch. 46, § 2(F)). The Act’s primary sponsor, 

former Arizona House Speaker David Gowan, “said he wanted to use the economic 

strength of the state to undermine the BDS movement and its goal of getting people to 

boycott companies that do business with Israel to pressure that country to change its 

policies.” Hauss Decl., Exh. A. Defendant Attorney General Brnovich said, “I think the 

message the Legislature wanted to send was we’re going to stand with Israel.” Id. And he 

“made it quite clear that, as far as he sees it, there’s no need for the Arizona law to treat 

all sides equally.” Id.2 

 

2

 The legislative record is rife with similar statements. For instance, at the Senate Finance 

Committee hearing, Senator Farley asked if a future legislature could impose a similar 

requirement on businesses that boycott Planned Parenthood. Speaker Gowan responded, 

“We’re talking about anti-BDS right now.” Senator Farley then asked whether the 

“government should as a matter of political policy say we’re only doing business with 

people who do business with people we like.” Speaker Gowan replied, “[T]his is a strong 

ally . . . As I assume you that would stand with your friends, period, that’s the suggestion 

here that I’m asking you to do, is stand with our friend, Israel.” Hearing on HB 2617 

Before the S. Fin. Comm., 52nd Leg. 2nd Regular Sess. (Ariz. 2016) at 7:23, available at

goo.gl/htaWAK. 

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“This is either viewpoint discrimination against the opinion that Israel mistreats 

Palestinians or subject matter discrimination on the topic of Israel. Both are 

impermissible goals under the First Amendment.” Koontz, 2018 WL 617894, at *10; cf. 

Claiborne, 458 U.S. at 913 (holding that the government does not have a legitimate 

interest in suppressing politically motivated boycotts). The Certification Requirement 

“describes impermissible [boycotting] not in terms of time, place, and manner, but in 

terms of subject matter.” Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 99 

(1972). “[T]he government’s ability to impose content-based burdens on speech raises the 

specter that the government may effectively drive certain ideas or viewpoints from the 

marketplace.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 

U.S. 105, 116 (1991). The State’s brief and the statements made by Attorney General 

Brnovich and Speaker Gowan establish that the law’s core purpose is to suppress 

criticism of Israel by removing one of the most effective tools for expressing this 

criticism. See Claiborne, 458 U.S. at 907–08 (describing the effectiveness of boycotts). 

This is patent viewpoint discrimination. See Eagle Point Educ. Ass’n/SOBC/OEA v. 

Jackson Cty. Sch. Dist. No. 9, --- F.3d ----, No. 15-35705, 2018 WL 560527, at *7 (9th 

Cir. Jan. 26, 2018) (“Viewpoint discrimination . . . occurs when the specific motivating 

ideology or the opinion or perspective of the speaker is the rationale for the restriction . . 

. .” (omissions and emphasis in original) (citation and internal quotation marks omitted)). 

Viewed as content or viewpoint discrimination, the Certification Requirement must 

satisfy strict scrutiny. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). 

The State argues that the Certification Requirement regulates conduct, not speech, 

and that it therefore cannot be considered viewpoint discriminatory. State Br. at 23–24 & 

n.13. But political boycotts are a form of inherently expressive conduct closely akin to 

pure speech. Claiborne, 458 U.S. at 913; Koontz, 2018 WL 617894, at *11 

(“[B]oycotts—like parades—have an expressive quality.”); cf. Texas v. Johnson, 491 U.S. 

397, 404 (1989) (recognizing “the expressive nature of [a] . . . sit-in by blacks in a ‘whites only’ 

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area to protest segregation”). Because political boycotts are constitutionally protected, 

United States v. O’Brien, 391 U.S. 367 (1968), does not apply. The O’Brien test 

governing regulations of expressive conduct may not be applied “unless ‘the conduct 

itself may constitutionally be regulated.’” United States v. Swisher, 811 F.3d 299, 312 

(9th Cir. 2016) (en banc) (citation omitted). Political boycotts cannot be regulated. 

Claiborne, 458 U.S. at 894, 918 (holding that the facially neutral tort of business 

interference could not be applied to political boycotts).3 

Even if political boycotts could be regulated, O’Brien still would not apply. “[I]f a 

government enactment is ‘directed at the communicative nature of conduct’ then it is 

content-based, and ‘must, like a law directed at speech itself, be justified by the 

substantial showing of need that the First Amendment requires.’” Swisher, 811 F.3d at 

312–13 (quoting Johnson, 491 U.S. at 406). Laws that “cannot be justified without 

reference to the content” of the regulated expressive conduct, or that were adopted 

“because of disagreement with the message” conveyed, are content-based. Id. at 313 

(citation and internal quotation marks omitted). “For instance, where a state prohibited 

burning the American flag because it might lead people to believe that the flag does not 

stand for the positive concepts of ‘nationhood and national unity,’ the Court was quick to 

conclude that such ‘concerns blossom only when a person’s treatment of the flag 

communicates some message, and thus are related to the suppression of free expression.’” 

Id. (citing Johnson, 491 U.S. at 410). Just as the law in Johnson was motivated by the 

 

3

 The State argues that affording First Amendment protection to political boycotts would 

mean that the government could not impose embargoes on foreign countries. State Br. at 

28–29 n.19. But embargoes prohibit everyone from doing business with the targeted 

country, which is necessary to “restrict[] the dollar flow to hostile nations.” Teague v. 

Reg’l Comm’r of Customs, 404 F.2d 441, 445 (2d Cir. 1968). Because embargoes 

primarily target non-expressive commercial transactions, “the infringement of first 

amendment freedoms is permissible as incidental to the proper, important, and substantial 

general purpose of the regulations.” Id. at 446. By contrast, the Certification Requirement 

is “squarely addressed” to political boycotts, which are inherently expressive. 

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desire to suppress messages associated with flag burning, the Certification Requirement 

is motivated by the State’s conclusion that the message expressed by BDS boycotts is 

inconsistent with the State’s “values,” particularly its support for Israel. State Br. at 23.4

III. The Certification Requirement Compels Speech. 

A. The Certification Requirement Imposes an Ideological Litmus Test.

The Constitution prohibits the State from imposing political and ideological litmus 

tests on government benefits. Public “[e]mployment may not be conditioned on an oath 

denying past, or abjuring future, associational activities within constitutional protection.” 

Cole v. Richardson, 405 U.S. 676, 680 (1972). “Nor may employment be conditioned on 

an oath that one has not engaged, or will not engage, in protected speech activities.” Id. 

The same rules apply to government contractors. Bd. of Cty. Comm’rs v. Umbehr, 518 

U.S. 668, 674–75 (1996) (extending public employee free speech protections to 

government contractors) (“We have held that government workers are constitutionally 

protected from dismissal for refusing to take an oath regarding their political 

affiliation.”); O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 725–26 (1996) 

(“Government officials may indeed terminate at-will relationships . . . but it does not 

follow that this discretion can be exercised to impose conditions on expressing, or not 

expressing, specific political views.”). 

The State maintains that the Certification Requirement does not compel any 

speech. State Br. at 17. But this is plainly false. It requires all state contractors, including 

the Firm, to certify that they are not participating in boycotts of Israel, and will not for the 

 

4

 The State also argues that the Certification Requirement is not viewpoint discriminatory 

because it prohibits everyone from participating in group boycotts of Israel regardless of 

their reasons. State Br. at 24 n.13. The State’s argument, reminiscent of the old adage that 

the law prohibits the rich and poor alike from sleeping underneath the bridges of Paris, 

does not address the fact that the Certification Requirement is facially content 

discriminatory and expressly justified on grounds of viewpoint discrimination. 

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duration of their contracts. See Jordahl Decl., Exh. 5. Mr. Jordahl objects to the 

certification and refuses to sign it. Jordahl Decl. ¶¶ 4, 31; Ensign Decl. Exh. A, Jan. 8, 

2018, 30(b)(6) Deposition of Mikkel (Mik) Jordahl, P.C. (“Dep.”) 106:22-107:7; 112:17-

113:21; 119:6-120:19; 170:6-171:14. The County cannot renew the Firm’s contract 

unless Mr. Jordahl signs the certification. Hauss Decl., Exh. B; Dep. 93:24-94:23; 

163:13-169:6; 171:8-171:14. In short, the Firm is being denied a government benefit 

because Mr. Jordahl refuses to sign a certification forswearing the Firm’s participation in 

protected political expression and association. This is a well-recognized Article III injury. 

See, e.g., Speiser v. Randall, 357 U.S. 513, 518–19 (1958) (striking down a California 

law that required veterans to declare that they were not engaged in subversive advocacy 

in order to obtain tax benefits). 

The State argues at length that the Certification Requirement does not apply to 

Plaintiffs’ boycott participation. State Br. at 8–10. As set forth in Section III.B, these 

arguments are unavailing, but the question is beside the point. Even if Plaintiffs were not 

engaged in any boycott activity at all, the State’s attempt to make Mr. Jordahl sign a 

certification about his Firm’s protected political activities and associations infringes 

Plaintiffs’ First Amendment rights. Baird v. State Bar of Arizona, 401 U.S. 1 (1971), is 

directly on point. There, the plaintiff objected to a question on her bar application 

requiring her to disclose “whether she had ever been a member of the Communist Party 

or any organization ‘that advocates overthrow of the United States Government by force 

or violence.’” Id. at 4–5. There was nothing in the record to suggest that she belonged to 

a Communist organization—in fact, none of the organizations to which she belonged 

were identified as potential Communist fronts. See id. at 4, 7 n.7. Nonetheless, the 

Supreme Court upheld her First Amendment claim, declaring: “When a State seeks to 

inquire about an individual’s beliefs and associations a heavy burden lies upon it to show 

that the inquiry is necessary to protect a legitimate state interest. And whatever 

justification may be offered, a State may not inquire about a man’s views or associations 

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solely for the purpose of withholding a right or benefit because of what he believes.” Id. 

at 6–7. The Certification Requirement directly violates this principle.5 

B. The Certification Requirement Applies to Mr. Jordahl’s Boycott. 

The State argues that the Certification Requirement does not apply to Mr. 

Jordahl’s boycott, which it mischaracterizes as a boycott of “companies whose policies 

he disagrees with.” State Br. at 6, 8–10. Not so. Mr. Jordahl boycotts “consumer goods 

and services offered by businesses supporting Israel’s occupation of the Palestinian 

territories.” Jordahl Decl. ¶ 3, 11. This boycott includes all companies operating in Israeli 

settlements in the West Bank. Dep. 58:9-58:13; 58:23-59:5. Mr. Jordahl considers his 

boycott to be a BDS boycott. Dep. 37:3-38:23. He initiated this boycott in response to 

calls made by JVP, of which he is a member, the ELCA, and a number of BDS groups. 

Id. ¶¶ 9–11; Dep. 34:20-36:5; 123:13-123:16; 159:21-160:12. 176:3-176:13. He reviews 

information provided by these groups in determining which companies to boycott. Dep. 

27:17-29:24. Based on the information he has reviewed, Mr. Jordahl has taken boycott 

actions against a number of companies, including Hewlett-Packard, Airbnb, SodaStream, 

and all products originating in the West Bank settlements. Dep. 13:14-13:21; 15:23-16:7; 

43:6-43:17; 173:4-173:17. Mr. Jordahl has signed JVP petitions asking Hewlett-Packard 

and Airbnb to stop operating in the West Bank. Dep. 20:12-20:20. He has also “asked 

 

5

 Attempting to distinguish Baird, the State contends that the Certification Requirement 

does not compel speech about political beliefs or association. State Br. at 29. As 

discussed in Section I, political boycotts are a protected form of expression and 

association based on shared political belief. See Claiborne, 458 U.S. at 907; Dep. 173:18-

173:23. Moreover, compelling state contractors to disown participation in protected 

political expression, particularly a form of group protest, is just as obnoxious to the First 

Amendment as requiring them to disavow particular political beliefs. See Cole, 405 U.S. 

at 680; Speiser, 357 U.S. at 518–19. The State can no more require contractors to certify 

their abstention from BDS campaigns than it can require them to certify that they are not 

members of the Communist party or engaged in Communist advocacy. 

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[his elected] representatives to reduce funding to Israel in an amount proportional to 

Israeli spending on settlements in the occupied Palestinian territories.” Jordahl Decl. ¶ 8; 

see also Dep. 20:25-21:10. Mr. Jordahl would like to extend his personal boycott 

activities to his Firm, but has not done so because of the Certification Requirement. 

Jordahl Decl.. ¶ 24; Dep. 46:21-49:23. 

The State’s interpretation of the Act is equally misleading. First, the State argues 

that the Certification Requirement applies only to boycotts of Israel proper, and so has no 

bearing on Mr. Jordahl’s boycott of businesses supporting Israel’s occupation of the 

Palestinian territories. State Br. at 8–10. The State conveniently omits the Act’s definition 

of “boycott,” A.R.S. § 35-393(1): 

“Boycott” means engaging in 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 in territories controlled by 

Israel, if those actions are taken either: (a) in compliance with or adherence to 

calls for a boycott of Israel other than those boycotts to which 50 [U.S.C.] § 

4607(c) applies. (b) in a manner that discriminates on the basis of nationality, 

national origin or religion and that is not based on a valid business reason. 

(Emphasis added.) This language is also included in the certification that Mr. Jordahl 

must sign to renew his Firm’s contract. See Jordahl Decl., Exh. 5 at 3. Mr. Jordahl has 

expressly agreed that he is “refusing to deal and taking other actions intended to limit 

commercial relations with companies doing business in territories controlled by Israel.” 

Dep. 160:7-160:12.6

The State also contends that Mr. Jordahl’s boycott is not “in compliance with or 

adherence to calls for a boycott of Israel,” A.R.S. § 35-393(1)(a), because his boycott 

activities are narrower than JVP’s broad boycott of Israeli companies. State Br. at 12–13. 

In fact, the scope of Mr. Jordahl’s boycott lines up closely with the ELCA’s call for a 

 

6 The plain meaning of “territories controlled by Israel” includes Palestinian territories 

under Israeli occupation. Hauss Decl., Exhs. C, D. 

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boycott of products made in Israeli settlements in the occupied Palestinian territories. 

Jordahl Decl. ¶ 9. In any event, the difference in scope between Mr. Jordahl’s boycott 

activity and any particular call for boycott is immaterial. The certification states that the 

signatory will not engage in a refusal to deal, terminate business activities, or perform 

“other actions that are intended to limit commercial relations . . . if those actions are 

taken . . . in compliance with or adherence to calls for a boycott of Israel.” Jordahl Decl., 

Exh. 5; accord A.R.S. § 35-393(1). In other words, the Certification Requirement 

compels contractors to disavow any intentional participation in a group boycott of Israel 

or its territories. See also id. § 35-393.02(B)(3) (stating that the Board of Investment may 

consider “a statement by a company that it is participating in a boycott of Israel or that it 

has taken a boycott action at the request of, in compliance with or in furtherance of calls 

for a boycott of Israel,” in determining whether a company is engaged in a proscribed 

boycott of Israel (emphasis added)). Mr. Jordahl unequivocally participates in a group 

boycott of Israel, even though his personal boycott actions are focused on companies 

directly supporting Israel’s occupation. Dep. 34:20-36:2. 

Finally, the State’s request for Pullman abstention, State Br. at 14, should be 

denied. “Pullman abstention ‘is generally inappropriate when First Amendment rights are 

at stake. . . . ‘because the guarantee of free expression is always an area of particular 

federal concern.’” Courthouse News Serv. v. Planet, 750 F.3d 776, 784 (9th Cir. 2014) 

(citations omitted) (collecting cases). “The only First Amendment case in which [the 

Ninth Circuit has] ever found the first requirement for Pullman abstention to be satisfied 

was procedurally aberrational. There, the plaintiffs had already reached the California 

Supreme Court in a pending case that presented the same issues as their federal suit, so 

they would not need to ‘undergo the expense or delay of a full state court litigation’ while 

their federal case was stayed. These exceptional factors are not present here.” Id. (citation 

omitted). Certification to the Arizona Supreme Court is also unnecessary. Even under the 

State’s implausible interpretation of the Act, Plaintiffs have standing and their claims are 

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ripe because the Firm’s contracts are conditioned on a compelled statement to which 

Plaintiffs object. Moreover, even under the State’s interpretation of the Act, the 

Certification Requirement facially violates the First Amendment because it is content and 

viewpoint discriminatory, compels speech, and unconstitutionally restricts participation 

in BDS boycotts.

C. The Certification Requirement Forces Mr. Jordahl to Disown His 

Boycott. 

 The Certification Requirement particularly harms Plaintiffs because it requires 

Mr. Jordahl to certify that his Firm is not participating in his BDS boycott of companies 

supporting Israel’s occupation. A political boycott’s expressive value depends on the 

collective recognition that the participants are engaged in a boycott, not merely making 

similar consumer choices—much as a parade’s expressive value depends on the 

collective recognition that marchers are participating in a parade, not merely walking in 

the same direction. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 

U.S. 557, 568 (1995) (“[W]e use the word ‘parade’ to indicate marchers who are making 

some sort of collective point, not just to each other but to bystanders along the way.”). As 

the State itself argues, nobody is likely to draw any inferences about Mr. Jordahl’s 

political beliefs based solely on the products he does or does not purchase. State Br. at 

21. These decisions are expressive because Mr. Jordahl explicitly characterizes them as 

part of his participation in a BDS boycott. 

 The Certification Requirement compels Mr. Jordahl to contradict the very 

message he wishes to communicate—namely, that he and his Firm are boycotting. 

Effectively, signing the certification would require Mr. Jordahl to endorse the State’s 

message of opposition to BDS and support for Israel. See Koontz, 2018 WL 617894, at 

*11 (“Forcing plaintiff to disown her boycott is akin to forcing plaintiff to accommodate 

Kansas’s message of support for Israel.”); cf. Hurley, 515 U.S. at 573–74 (holding that 

antidiscrimination law could not be enforced to require parade organizers to 

accommodate a message they did not wish to express). Signing the certification would 

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also affect Mr. Jordahl’s personal boycott by exposing him to charges of hypocrisy, given 

that he and his Firm are closely identified. See Agency for Int’l Dev. v. All. for Open 

Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013); Dep. 50:5-50:7. The Certification 

Requirement thus forces Mr. Jordahl to express a message that violates his beliefs and 

undermines his protected expression. Dep. 113:12-113:21; 119:20-120:1; 159:9-159:14. 

IV. The Certification Requirement Restricts Contractor Expression. 

As Koontz recognized, boycott certification laws like the one at issue here are 

facially invalid because they unconstitutionally restrict government contractors’ protected 

expression. Koontz, 2018 WL 617894, at *8, *14 (enjoining defendant from enforcing the 

certification requirement against any state contractors). “To determine whether a state is 

infringing on an independent contractor’s rights under the First Amendment, courts use 

the same guidelines developed in [Pickering v. Board of Education, 391 U.S. 563 (1968)]

and its progeny.” Id. at *8; If Plaintiffs demonstrate that the Certification Requirement 

suppresses protected expression and association, the government must justify its 

infringement on First Amendment rights. Id. (citing Pickering, 391 U.S. at 675). Where, 

as here, the government imposes a statutory restriction on protected expression and 

association, it “must show that the interests of both potential audiences and a vast group 

of present and future employees in a broad range of present and future expression are 

outweighed by that expression’s ‘necessary impact on the actual operation’ of the 

Government.” United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 468 (1995). 

“To make this showing, the government must establish a real harm that the law will 

alleviate directly.” Koontz, 2018 WL 617894, at *8 (citing NTEU, 513 U.S. at 475). 

 In this case, the Certification Requirement prohibits state and local government 

contractors throughout Arizona from participating in boycotts of Israel, and directly 

targets politically motivated BDS boycotts. The State argues that these boycotts do not 

amount to speech on matters of public concern, and therefore do not deserve protection 

under Pickering and its progeny. State Br. at 29. To the contrary, as discussed in Section 

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I, boycotts like those at issue here are political expression and association lying at the 

heart of the First Amendment. See Claiborne, 458 U.S. at 915; see also, e.g., Lane v. 

Franks, 134 S. Ct. 2369, 2380 (2014) (discussing the public concern test). The State also 

argues that the Certification Requirement does not limit any expression because 

contractors remain free to voice their criticism of Israel in other ways. On that theory, 

Texas could have justified its flag burning law by arguing that people could criticize the 

United States, or even the flag itself, without resorting to flag desecration. The Court 

considered, and rejected, these arguments in Johnson. See 491 U.S. at 437–38 (Stevens, 

J., dissenting). Moreover, political boycotts carry special force that often cannot be 

replicated through other means. Claiborne, 458 U.S. at 907–08.7

Since Mr. Jordahl signed the certification in 2016, his Firm has been directly 

affected by this prohibition. He recently needed to purchase a mobile printer for his Firm. 

Dep. 46:25-47:3. He went to his local Staples, which had a Hewlett-Packard mobile 

printer on sale. Dep. 47:5-47:7. Mr. Jordahl boycotts Hewlett-Packard because it is 

supporting Israel’s occupation and profiting from operations in Israeli settlements. Dep. 

13:14-13:21; 58:23-59:2; 153:7-153:9. The store did not carry any other printers, and Mr. 

Jordahl could not find any comparable deals online. Dep. 47:7-47:11. He decided that he 

had to buy the printer to comply with the certification. Dep. 47:12-47:14. Mr. Jordahl 

also needs a new desktop for his firm. Dep. 47:24-48:3. He has decided to forgo that 

purchase while this case is pending, because he doesn’t “want to get into the same 

situation where the State of Arizona is telling [him] which – which computer [he has] to 

buy if [he] want[s] to work.” Dep. 48:9-48:11. 

 

7

 The State’s defense to overbreadth fails for the same reasons. See State Br. at 30–31. 

Because “[t]he core of the Act” is directed at political boycotts, it has no “plainly 

legitimate sweep.” State Br. at 30. Further, the State offers no evidence to suggest that the 

law applies primarily to “large corporations and companies.” Id. at 31. Even if it did, 

those companies also have free speech rights. Citizens United, 558 U.S. at 343. 

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In addition to directly prohibiting boycott activity, the Certification Requirement 

chills a wide range of boycott-related expression and association. See Baggett v. Bullitt, 

377 U.S. 360, 367–68 (1964) (invalidating a statute requiring teachers to swear that they 

were not engaged in acts intended to overthrow the government by revolution, force, or 

violence, because of “the susceptibility of the statutory language to require forswearing 

of an undefined variety of ‘guiltless knowing behavior’”); see also NAACP v. Button, 371 

U.S. 415, 434 (1963). Here, Mr. Jordahl’s Firm turned down opportunities to support and 

associate with JVP because of the organization’s central commitment to BDS. Jordahl 

Decl. ¶¶ 25, 26; Dep. 122:12-123:6; 174:8-174:19. The State argues that the Certification 

Requirement applies only to termination of business activities. State Br. at 11–12. But 

boycotts take “many forms.” Claiborne, 458 U.S. at 907. The Claiborne boycott involved 

“elements of speech, assembly, association, and petition,” id. at 911, and the Mississippi 

courts imposed liability on the basis of actions that went far beyond the refusal to make 

purchases—such as “management of the boycott,” speech made in support of the boycott, 

and association with boycott organizers, id. at 897–98—because they viewed these 

actions as aspects of the boycott, id. at 921. 

Although the State maintains in its brief that the Certification Requirement’s use 

of the term “boycott” does not encompass similar association and advocacy, this 

litigating position is not binding on state or local agencies, nor is it spelled out in the 

certification itself. See Stenberg v. Carhart, 530 U.S. 914, 940 (2000) (“[O]ur precedent 

warns against accepting as ‘authoritative’ an Attorney General’s interpretation of state 

law when ‘the Attorney General does not bind the state courts or local law enforcement 

authorities.’”). The State’s assurances are thus cold comfort to contractors forced to sign 

a government form promising that they are not currently engaged in a boycott of Israel. 

Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383–84 (2d Cir. 2000) (holding 

that State’s representation that it had no intention of suing Vermont Right to Life 

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Committee could not “remove VRLC’s reasonable fear that it will be subjected to 

penalties for its planned expressive activities”). 

The Certification Requirement also chills Mr. Jordahl’s personal expression. 

Although Mr. Jordahl agrees that the Certification Requirement should not apply to his 

personal boycott, the line between his personal activity and his Firm’s activities is not 

always clear. Dep. 162:12-163:7. For instance, Mr. Jordahl boycotts Airbnb in his 

personal capacity because it operates in the West Bank. Dep. 13:19-13:21. He instead 

uses VRBO, an alternate vacation rental service. Dep. 48:13-48:23. Mr. Jordahl was 

planning travel to Phoenix to meet with his attorneys on January 5 and stay through the 

weekend to appear for his deposition on January 8. Dep. 48:24-49:3. He found a good 

deal on Airbnb and could not find an equivalent deal on VRBO. Dep. 49:3-49:13. He 

could not determine whether his travel in this case was personal travel, meaning he could 

boycott Airbnb, or work travel, meaning he could not. Dep. 49:14-49:23. To resolve the 

dilemma, Mr. Jordahl decided to forgo meeting with his attorneys in person and booked a 

hotel for the night before the deposition. Dep. 49:18-49:19. Mr. Jordahl has also refrained 

from discussing his personal boycott participation out of concern that would it cast 

suspicion on his Firm’s compliance with the certification. Jordahl Decl. ¶ 27; Dep. 74:25-

75:9 161:2-161:22. The Certification Requirement forces this calculus on contractors 

who choose to boycott Israel in their personal capacities. See Button, 371 U.S. at 434 

(stating that laws targeting political speech “understandably” chill people from doing 

even “what [a] decree purports to allow”). 

V. The State Fails to Justify the Certification Requirement. 

Whether analyzed as content/viewpoint discrimination, compelled speech, or a 

statutory restriction on contractor speech, the Certification Requirement must at least be 

narrowly tailored to advance a legitimate government interest. See Koontz, 2018 WL 

617894, at *10; see also, e.g., Reed, 135 S. Ct. at 2231–32; Open Soc’y, 570 U.S. at 220–

21; Baird, 401 U.S. at 706; Sanjour v. EPA, 56 F.3d 85, 97 (D.C. Cir. 1995) (en banc). 

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The Court’s inquiry must be limited to the “interests the State itself asserts.” Id. at 96 

(internal quotation marks omitted) (quoting Edenfield v. Fane, 507 U.S. 761, 768 (1993)). 

Here, the State asserts two interests to justify the Certification Requirement: (1) its police 

power interest in regulating commercial activity; and (2) its interest in prohibiting 

discrimination. The Certification Requirement is not narrowly tailored to either interest. 

On the one hand, the State argues that even inherently expressive activities may be 

subject to economic regulations that incidentally burden expression. State Br. at 22. In 

this case, the State asserts that it “has properly acted to regulate commercial activity to 

align commerce in the State with the State’s policy objectives and values,” particularly its 

interest in supporting Israel and opposing BDS. Id. at 23. But, as Claiborne established, 

the government’s power to regulate economic activity does not authorize it to suppress 

inherently expressive political boycotts like BDS. Claiborne, 458 U.S. at 913. Further, if 

the law’s purpose were purely economic, it would be both overinclusive and 

underinclusive. If the law were aimed at preventing anticompetitive boycotts, it would be 

overinclusive because it applies to protected political boycotts. Koontz, 2018 WL 617894, 

at *10. If the law were intended to protect Arizona’s trade relationships, it would be 

fatally underinclusive because it fails to regulate a whole range of economic activity 

affecting those relationships. Id. The law’s acknowledged purpose is not mere regulation 

of economic activity, but to undermine BDS boycotts of Israel because they do not align 

with the State’s “values.” That goal is flatly prohibited by the First Amendment. Id.8

 

8

 The State also speculates that BDS supports terrorist activities by strengthening the 

political position of the Palestinian Authority relative to Israel. State Br. at 23. Similarly, 

one of the law’s proponents testified, “I ask you to strongly and emphatically stand with 

not only the Jewish community, but really the full American community, when we say no 

to terrorism, and that this state will not do business with those that oppose the State of 

Israel and, frankly, support terrorist states.” Statement of Adam Kwasman, Hearing on 

HB 2617 Before the S. Fin. Comm., 52nd Leg. 2nd Regular Sess. (Az. 2016) at 14:40, 

available at goo.gl/htaWAK. “It would be blinking reality not to acknowledge that there 

are some among us always ready to affix a [terrorist] label upon those whose ideas they 

violently oppose.” Baggett, 377 U.S. at 373. Contrary to the State’s unsupported 

(continued...) 

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On the other hand, the State argues that its interest in preventing discrimination 

justifies the Certification Requirement. State Br. at 23–24. The Certification Requirement 

cannot be made to fit this asserted interest. First, only one of the Certification 

Requirement’s two provisions prohibits Israel boycott actions taken “in a manner that 

discriminates on the basis of nationality, national origin or religion.” A.R.S. § 35-

393(1)(b). The State concedes that this provision does not apply to Plaintiffs’ boycott. 

State Br. at 13. The other provision—the one that applies to Plaintiffs—prohibits Israel 

boycott actions taken “in compliance with or adherence to calls for a boycott of Israel.” 

Id. § 39-393(1)(a). The State does not explain why this additional provision is necessary. 

Second, A.R.S. § 35-393(1)(b) does not generally prohibit contractors from 

discriminating on the basis of nationality, national origin, or religion. Compare Roberts v. 

U.S. Jaycees, 468 U.S. 609, 615, 623 (1984) (statute prohibiting public accommodations 

from discriminating based on “race, color, creed, religion, disability, national origin or 

sex” did “not distinguish between prohibited and permitted activity on the basis of 

viewpoint”). Instead, it prohibits contractors from discriminating on those grounds when 

participating in a boycott of Israel. The State cannot enact antidiscrimination laws that 

target expression or expressive conduct based on its content or viewpoint. R.A.V. v. City 

of St. Paul, 505 U.S. 377, 396 (1992) (“[T]he only interest distinctively served by the 

content limitation is that of displaying the city council’s special hostility towards the 

particular biases thus singled out. That is precisely what the First Amendment forbids.”). 

 

insinuations, the Palestinian civil society call for BDS is unequivocally nonviolent. See 

Hauss Decl., Exh. E; see also Koontz, 2018 WL 617894, at *9 n.8; Dep. 37:8-37:15. But 

even if the State could identify individual instances of violence associated with the BDS 

campaigns in which Mr. Jordahl participates, which it has manifestly failed to do, that 

would not strip Plaintiffs’ boycott of its constitutional protection. Koontz, 2018 WL 

617894, at *9 (citing Claiborne, 458 U.S. at 908). 

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Finally, the application of even facially neutral antidiscrimination laws to 

protected expression or inherently expressive activity, such as a political boycott, protest, 

or parade, is inconsistent with the First Amendment. See Hurley, 515 U.S. at 578. The 

boycott in Claiborne explicitly targeted white-owned businesses. 458 U.S. at 900. It was 

nevertheless constitutionally protected. Indeed, the State’s premise—that the government 

has an antidiscrimination interest in penalizing an expressly political boycott of consumer 

goods and services, simply because the legislature has characterized the boycott as 

discriminatory—proves too much. By the State’s logic, the government could have 

invoked its antidiscrimination interests to suppress the campaign to boycott apartheid 

South Africa, boycotts targeting France after it opposed the U.S. government’s military 

action in Iraq, Hauss Decl., Exh. F, or the boycott in Claiborne.

9

 

VI. The Certification Requirement Is an Unconstitutional Condition. 

The State argues that, even if the government cannot prohibit boycotts of Israel 

directly, it may nonetheless condition government contracts on a certification that 

contractors are not participating in such boycotts. Not so. Although the government is not 

required to “subsidize the exercise of a fundamental right,” Regan v. Taxation with 

 

9

Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 

286 (2d Cir. 1992), is inapposite. In that case, the Second Circuit held that the Jewish 

Community Relations Council of New York violated state and federal antidiscrimination 

laws by inter alia threatening to boycott a resort if it did not cancel its contract with Jews 

for Jesus. The court held that Claiborne did not protect the threatened boycott for two 

reasons. First, it held that the threatened boycott was not protected because it sought “to 

achieve an objective prohibited by valid state and federal statutes”—i.e., the denial of 

access to a public accommodation based on religious belief. Id. at 297–98. Second, it held 

that the threatened boycott “was not political speech,” but rather “a series of private 

communications in the context of a private dispute.” Id. at 298. Neither principle applies 

here. Plaintiffs and other BDS participants “have banded together to express collectively 

their dissatisfaction with the injustice and violence they perceive, as experienced both by 

Palestinians and Israeli citizens,” and “to influence governmental action,” Koontz, 2018 

WL 617894, at *9. This is not a conspiracy to violate civil rights laws, but archetypal 

political expression entitled to full First Amendment protection. 

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Representation of Wash., 461 U.S. 540, 549 (1983), it “may not deny a benefit to a 

person on a basis that infringes his constitutionally protected . . . freedom of speech even 

if he has no entitlement to that benefit.” Rumsfeld, 547 U.S. at 59. “[T]he relevant 

distinction that has emerged . . . is between conditions that define the limits of the 

government spending program—those that specify the activities [the government] wants 

to subsidize—and conditions that seek to leverage funding to regulate speech outside the 

contours of the program itself.” Open Soc’y, 570 U.S. at 214–15. 

Courts do not apply these principles on a blank slate. This case concerns the rights 

of government contractors. “An independent contractor who provides services to the 

government is generally treated like a public employee for purposes of determining 

whether the contractor has alleged a violation of his First Amendment rights.” Clairmont 

v. Sound Mental Health, 632 F.3d 1091, 1101 (9th Cir. 2011) (citing Umbehr, 518 U.S. at 

673–74); cf. O’Hare, 518 U.S. at 721–22 (holding that the analysis for public employee 

political affiliation claims also applies to independent contractors). As discussed above, 

the Certification Requirement violates the First Amendment protections afforded to 

government contractors. 

The State’s reliance on Regan is misplaced. State Br. at 26. That case did not 

concern a government contract at all, but rather upheld a challenge to § 501(c)(3) of the 

Internal Revenue Code, which requires that organizations seeking tax-exempt status not 

attempt to influence legislation. 461 U.S. at 544. Reasoning that “[a] tax exemption has 

much the same effect as a cash grant to the organization,” the Court concluded that by 

limiting § 501(c)(3) status, Congress had permissibly “chose[n] not to subsidize 

lobbying.” Id. The Court held that this restriction did not penalize the plaintiff’s exercise 

of First Amendment rights because the organization could separately incorporate and 

affiliate with a § 501(c)(4) organization. Id. The plaintiff could thus receive tax-exempt 

status for its nonlobbying activities under the § 501(c)(3), while influencing legislation 

through the § 501(c)(4). Because this fix was not “unduly burdensome,” id. at 544 n.6, 

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Congress had not denied the plaintiff “any independent benefit on account of its intention 

to lobby,” id. at 545. See also Rust v. Sullivan, 500 U.S. 173, 194 (1991) (“When the 

Government appropriates public funds to establish a program it is entitled to define the 

limits of that program.”); accord United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 

211 (2003); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998); cf. 

Lyng v. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW, 

485 U.S. 360, 369 (1988) (upholding statute that “decline[d] to extend additional food 

stamp assistance to striking individuals simply because the decision to strike inevitably 

leads to a decline in their income” (emphasis added)). 

By contrast, in FCC v. League of Women Voters, the Court invalidated a funding 

condition that prohibited editorializing by recipients of federal broadcast grants. 468 U.S. 

364, 399–401 (1984). The Court struck the condition down because it prevented 

recipients from engaging in editorializing activity even with private funds, and thus 

regulated expression outside the scope of the government program. Id. at 400. Later, in 

Open Society, the Court held that the First Amendment prohibited a funding condition 

requiring nongovernmental organizations receiving certain congressional funds to adopt a 

policy explicitly opposing sex trafficking. 570 U.S. at 221. The Court held that “the 

condition by its very nature affect[ed] ‘protected conduct outside the scope of the 

federally funded program,’” because it compelled recipients to express a particular belief. 

Id. at 218 (quoting Rust, 500 U.S. at 197). Observing that “[a] recipient cannot avow the 

belief dictated by the Policy Requirement when spending Leadership Act funds, and then 

turn around and assert a contrary belief, or claim neutrality, when participating in 

activities on its own time and dime,” the Court held that the condition went “beyond 

defining the limits of the federally funded program to defining the recipient.” Id.10

 

10 Funding conditions requiring an entity to comply with antidiscrimination laws 

primarily regulate unprotected conduct. See Christian Legal Soc’y v. Martinez, 561 U.S. 

(continued...) 

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This case is much closer to Open Society and League of Women Voters than to 

Regan and its progeny. Like the pledge in Open Society, the Certification Requirement 

compels contractors to express a particular message categorically disavowing 

participation in a boycott of Israel for the duration of their contracts. See 570 U.S. at 218 

(noting that the Policy Requirement “is an ongoing condition on recipients’ speech and 

activities”). And, like the funding condition in League of Women Voters, the Certification 

Requirement is not restricted to the use of government funding, but applies to a 

contractor’s boycott activity outside the government program. See 468 U.S. at 400; cf. 

Lyng, 485 U.S. at 363 n.2 (statute provided that “a household shall not lose its eligibility 

to participate in the food stamp program as a result of one of its members going on strike 

if the household was eligible for food stamps immediately prior to such strike”). Finally, 

unlike Regan, the law prohibits contractors from affiliating with entities that participate 

in a proscribed boycott of Israel. A.R.S. § 35-393(2).11

 

VII. Plaintiffs Are Suffering Irreparable Harm. 

As set forth in Plaintiffs’ opening brief, the violation of First Amendment rights 

amounts to irreparable harm for purposes of the preliminary injunction analysis. See, e.g., 

Elrod v. Burns, 427 U.S. 347, 373 (1976); Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 

 

661, 696 (2010). Such conditions therefore do not pose the same First Amendment 

problems as laws requiring contractors to accommodate a government message or 

disavow protected expression. As discussed in Sections II and V, the Certification 

Requirement primarily regulates expression and cannot be characterized as an 

antidiscrimination measure.

11 The State argues that, “like Plaintiffs,” it does not read the Certification Requirement’s 

prohibition on affiliates to include “other companies also owned by the same individual” 

as the contracting entity. State Br. at 12. In fact, Mr. Jordahl said the opposite. See Dep. 

105:12-105:13 (“[I]f I set up a separate nonprofit, you know, that would clearly be an 

affiliate of the other one.”). The State’s interpretation also contradicts “[t]he plain and 

ordinary meaning of ‘affiliate’” as “‘a company effectively controlled by another or 

associated with others under common ownership or control.’” Satterfield v. Simon & 

Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (quoting Webster’s Third New 

International Dictionary 35 (2002)).

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2014) (“A colorable First Amendment claim is irreparable injury sufficient to merit the 

grant of relief.” (citation and internal quotation marks omitted)). The State does not 

address these arguments, but instead asserts that Plaintiffs’ harms are “merely trifling” 

because the Firm expects to be compensated if Plaintiffs win their lawsuit. It is hardly 

trifling for Mr. Jordahl’s Firm to forgo ten percent of its gross income while performing 

uncompensated labor for the County. Dep. 93:25-95:9. Moreover, in Elrod, the Supreme 

Court held that a preliminary injunction was warranted to remedy a First Amendment 

violation—even though back pay would later be available if the plaintiffs were 

successful—because “[t]he loss of First Amendment freedoms, for even minimal periods 

of time, unquestionably constitutes irreparable injury.” 427 U.S. at 373. Here, the “harm 

is ongoing because the [Arizona] Law is currently chilling [Plaintiffs’] and other putative 

state contractors’ speech rights.” Koontz, 2018 WL 617894, at *13.12

VIII. A Broad Preliminary Injunction Is Necessary to Prevent Further Harm to 

Contractors’ First Amendment Rights. 

Given that the Certification Requirement facially violates the First Amendment, 

the appropriate remedy is an injunction preventing Defendants from enforcing the 

requirement against all government contractors, not just Plaintiffs. The State argues that, 

“in the absence of class certification, a preliminary injunction may only properly address 

the harm to the named plaintiff.” State Br. at 32. To the contrary, a court may “reach 

beyond the particular circumstances of [the] plaintiffs” if they satisfy the standard for a 

facial challenge. John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). In the First 

 

12 The State also asserts that preliminary relief is not merited because Plaintiffs delayed 

filing suit after they were first aware of their claims. State Br. at 32. But the claims at 

issue here derive principally from the certification Mr. Jordahl was asked to sign on 

November 14, 2017, as part of his Firm’s contract renewal. Plaintiffs filed this lawsuit 

less than a month later. Even the case relied on by the State recognizes that preliminary 

injunctive relief is appropriate where “new harm is imminent.” Oakland Tribune, Inc. v. 

Chronicle Publ’g Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985).

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Amendment context, in particular, the Ninth Circuit has “consistently recognized the 

‘significant public interest’ in upholding free speech principles, as the ‘ongoing 

enforcement of the potentially unconstitutional regulations . . . would infringe not only 

the free expression interests of [plaintiffs], but also the interests of other people’ 

subjected to the same restrictions.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 

(9th Cir. 2009) at 1208 (alterations and omission in original). 

IX. The Attorney General Is a Proper Defendant. 

Finally, the Attorney General is a proper defendant. The test for whether the Court 

can exercise jurisdiction over the Attorney General is whether there is a sufficient 

connection between his responsibilities and any injury that Plaintiffs might suffer. 

Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919–20 (9th Cir. 2004). The 

requisite connection exists here. Although the Attorney General is not responsible for 

directly enforcing the law against state contractors, he is authorized to prosecute 

custodians of public funds for paying those funds to another person “[w]ithout authority 

of law.” A.R.S. § 35-301(1). The Attorney General thus “has ‘a powerful coercive effect 

on the action agency,’” which makes him a proper defendant in this action challenging 

the Certification Requirement’s constitutionality. Planned Parenthood of Ariz., Inc. v. 

Brnovich, 172 F. Supp. 3d 1075, 1095–96 (D. Ariz. 2016) (citation omitted); see also 

Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 71–72 & n.16 (1978). 

CONCLUSION 

For the foregoing reasons, the Court should grant Plaintiffs’ motion for 

preliminary injunction and deny the State’s motion to dismiss. 13

 

 

13 Local Civil Rule 7.2(e) allows 17 pages for an opposition to a motion to dismiss and 11 

pages for a reply supporting a motion for a preliminary injunction. This combined brief is 

28 pages long, in accordance with the combined page limits. 

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Respectfully submitted this 15th day of February, 2018 

/s/ Brian Hauss 

Brian Hauss (pro hac vice) 

Vera Eidelman (pro hac vice) 

Ben Wizner (pro hac vice) 

ACLU Foundation 

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 

Kathleen E. Brody, AZ Bar No. 026331 

Darrell L. Hill, AZ Bar No. 030424 

ACLU Foundation of Arizona 

P.O. Box 17148 

Phoenix, AZ 85011 

Telephone: (602) 650-1854 

kbrody@acluaz.org 

dhill@acluaz.org 

Attorneys for Plaintiffs 

 

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CERTIFICATE OF SERVICE 

I certify that on February 15, 2018, the foregoing Plaintiffs’ Combined Opposition 

to the State’s Motion to Dismiss and Reply in Support of Preliminary Injunction and 

attached exhibits were electronically transmitted to the Clerk’s Office using the CM/ECF 

system for filing and distribution to the following CM/ECF registrants. 

Drew C. Ensign 

Oramel H. (O.H.) Skinner 

Brunn (Beau) W. Roysden III 

Evan G. Daniels 

Keith J. Miller 

Aaron Duell 

Arizona Attorney General’s Office 

2005 N. Central Avenue 

Phoenix, Arizona 85004 

Telephone: (602) 542-5200 

Drew.Ensign@azag.gov 

DATED this 15th day of February, 2018 

/s/ Brian Haussg

Brian Hauss (pro hac vice) 

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