EXHIBIT 1

EXHIBIT 1

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 1 of 19
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Brian J. Schulman (SBN 015286), schulmanb@gtlaw.com 

Greenberg Traurig, LLP 

2375 E. Camelback Road, Suite 700 

Phoenix, AZ 85016 

Telephone: (602) 445-8000 

schulmanb@gtlaw.com 

Gregory E. Ostfeld (pro hac vice application forthcoming) 

Greenberg Traurig, LLP 

77 West Wacker Drive, Suite 3100 

Chicago, IL 60601 

Telephone: (312) 456-8400 

ostfeldg@gtlaw.com 

Attorneys for Amicus Curiae American Jewish Committee 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

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

Plaintiffs, 

v. 

Mark Brnovich, Arizona Attorney General; 

Jim Driscoll, Coconino County Sheriff; Matt 

Ryan, Coconino County Board of Supervisors 

Chair; Lena Fowler, Coconino County Board 

of Supervisors Vice Chair; Elizabeth 

Archuleta Coconino County Board of 

Supervisors Member; Art Babbott, Coconino 

County Board of Supervisors Member; Jim 

Parks, Coconino County Board of 

Supervisors Member; Sarah Benatar, 

Coconino County Treasurer, all in their 

official capacities, 

Defendants. 

NO. 3:17-CV-08263-DJH

BRIEF OF AMICUS 

CURIAE AMERICAN 

JEWISH COMMITTEE 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 2 of 19
i 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

TABLE OF CONTENTS 

INTEREST OF THE AMICUS ......................................................................................... 1

INTRODUCTION ............................................................................................................. 2

ARGUMENT .................................................................................................................... 4

I. HB 2617 Does Not Impose Any Limits on Mr. Jordahl’s Personal 

Participation in a Boycott, nor Does It Restrain His Expression or 

Association .................................................................................................. 4

II. HB 2617 Only Prevents the Firm from Engaging in an Invidious or 

Discriminatory Boycott Subsidized by the Government, and Does 

Not Limits Its Expression or Association ................................................... 8

CONCLUSION ............................................................................................................... 12

 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 3 of 19
ii 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

TABLE OF AUTHORITIES

Federal Cases 

Agency for International Development v. Alliance for Open Society 

International, Inc., 

570 U.S. 205 (2013) ..................................................................................... 7, 8, 10, 12 

Board of County Commissioners, Wabaunsee County v. Umbehr, 

518 U.S. 668 (1996) ................................................................................................... 10 

Cammarano v. United States, 

358 U.S. 498 (1959) ..................................................................................................... 9 

NAACP v. Claiborne Hardware Co., 

458 U.S. 886 (1982) ................................................................................................... 12 

Pickering v. Board of Education, 

391 U.S. 563 (1968) ................................................................................................... 10 

Regan v. Taxation With Representation of Washington, 

461 U.S. 540 (1983) ............................................................................................... 9, 12 

Rust v. Sullivan, 

500 U.S. 173 (1991) ............................................................................................... 9, 12 

Satterfield v. Simon & Schuster, Inc., 

569 F.3d 946 (9th Cir. 2009) ..................................................................................... 11 

United States v. Am. Library Ass’n, Inc., 

539 U.S. 194 (2003) ............................................................................................... 9, 12 

Waters v. Churchill, 

511 U.S. 661 (1994) ................................................................................................... 10 

State Cases 

Glazer v. State, 

242 Ariz. 391, 396 P.3d 627 (Ariz. App. 2017) .......................................................... 6 

Hosea v. City of Phx. Fire Pension Bd., 

224 Ariz. 245, 229 P.3d 257 (Ariz. App. 2010) .......................................................... 6 

JHass Grp. L.L.C. v. Ariz. Dep’t of Fin. Insts., 

238 Ariz. 377, 360 P.3d 1029 (Ariz. App. 2015) ........................................................ 5 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 4 of 19
iii 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

Powers v. Carpenter, 

203 Ariz. 116, 51 P.3d 338 (2002) .............................................................................. 5 

Slayton v. Shumway, 

166 Ariz. 87, 800 P.2d 590 (1990) .............................................................................. 5 

State v. Miller, 

100 Ariz. 288, 413 P.2d 757 (1966) ............................................................................ 5 

Welch–Doden v. Roberts, 

202 Ariz. 201, 42 P.3d 1166 (Ariz. App. 2002) .......................................................... 5 

Wright v. Gates, 

243 Ariz. 118, 402 P.3d 1003 (2017) .......................................................................... 5 

Statutes 

A.R.S. §§ 35-301-35-393.03 ............................................................................................. 6 

A.R.S. § 35-393 ....................................................................................................... 4, 5, 11 

A.R.S. § 35-393.01 .................................................................................................... 5, 6, 8

Other Authorities 

Black’s Law Dictionary 59 (7th ed.1999) ....................................................................... 11 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 5 of 19
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

INTEREST OF THE AMICUS

The American Jewish Committee (“AJC”) is a national organization with more 

than 125,000 members and supporters and 22 regional offices nationwide. It was 

founded in 1906 to protect the civil and religious rights of American Jews. Its mission is 

to enhance the well-being of Israel and the Jewish people worldwide, and to advance 

human rights and democratic values in the United States and around the world. AJC 

frequently speaks out on issues of public concern, including events in the Middle East, 

Israeli-Palestinian relations, and anti-Semitism. 

In accordance with its mission and values, AJC opposes the use of public funds 

to support the so-called Boycott, Divestment, and Sanctions (“BDS”) movement, which 

markets itself as a non-violent movement to boycott, divest from, and sanction Israel 

with the putative goal of getting it to withdraw to its pre-1967 borders, but whose 

leadership in fact seeks and has actively promoted the elimination of Israel as a Jewish 

state. AJC has actively sought to rally elected officials to reject the BDS movement. 

AJC has also spearheaded legislation to ensure that no unit of government is compelled 

to subsidize a contractor’s decision to boycott Israeli goods or services. To that end, 

AJC supports the certification requirement contained in House Bill 2617, A.R.S. § 35-

393 et seq. (“HB 2617” or the “Act”), which the present lawsuit seeks to enjoin and 

declare unconstitutional. 

Plaintiffs misconstrue and mischaracterize HB 2617 as a restraint on personal 

boycotts, as well as related acts of expression and association. That is not the Act’s 

scope or effect. Though AJC vocally and vigorously opposes the BDS movement, it 

fully supports each citizen’s right to engage in personal boycotts as an expression of his 

or her individual social, political, religious, or moral beliefs. The Act is not intended to 

reach, and should not reasonably be construed to reach, such personal conduct. Rather, 

the Act expresses the State’s legitimate interest in ensuring that public funds are not 

used to subsidize a contractor’s engagement in boycotts or other BDS activities that 

either impair the State’s commerce with Israel or are carried out in a manner that 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 6 of 19
2 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

discriminates on the basis of nationality, national origin or religion and that is not based 

on a valid business reason. The State is not obliged to expend public resources to 

subsidize such activities. 

HB 2617 protects the State’s legitimate government interest by requiring State 

contractors to certify that they are not participating in such boycotts of Israel with 

respect to the contracted goods or services they are supplying. Protecting this interest 

need not and does not impede individual expression or association. The Act cannot be 

construed to prevent individuals from participating in boycotts in their personal 

capacities. And it cannot be construed to prevent individuals from expressing their 

personal views regarding boycotts or associating with others who share their views. 

AJC therefore respectfully submits this amicus curiae brief to clarify the legitimate and 

constitutional scope of the Act. 

INTRODUCTION 

Plaintiffs challenge the constitutionality of HB 2617, which requires government 

contractors to certify in their capacity as contractors that they are not engaged in 

boycotts of Israel. Plaintiff Mikkel Jordahl (“Mr. Jordahl”) states that he personally 

participates in a political boycott of consumer goods and services offered by businesses 

supporting Israel’s occupation of the Palestinian territories. (Dkt. No. 1 at 6-8; Dkt. No. 

6 at 1). His law firm, Plaintiff Mikkel (Mik) Jordahl, P.C. (the “Firm”) has contracted 

with the Coconino County Jail District for the past twelve years to provide legal 

services to incarcerated individuals, with annual renewals. (Dkt. No. 1 at 8; Dkt. No. 6 

at 1). After the Act took effect on August 6, 2016, Mr. Jordahl signed a certification on 

behalf of the Firm, under protest, certifying that the Firm is not currently engaged in a 

boycott of Israel as defined by the Act. (Dkt. No. 1 at 8-9; Dkt. No. 6 at 1). Mr. Jordahl 

made clear that he was signing the certification solely on behalf of the Firm, and not in 

his personal capacity, and has been careful to separate his personal boycott participation 

from the operation of his Firm. (Dkt. No. 1 at 9-10; Dkt. No. 6 at 1-2). 

Plaintiffs allege that, notwithstanding this separation, the Act has chilled 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 7 of 19
3 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

Plaintiffs’ expression and association. With respect to Mr. Jordahl, Plaintiffs allege he 

fears that vocal advocacy about his personal boycott participation would lead to 

suspicion about the Firm’s compliance with the certification, and that he has felt 

pressure not to promote or discuss his personal boycott participation in public. (Dkt. No. 

1 at 11; Dkt. No. 6 at 2). As to the Firm, Plaintiffs allege the Act has prevented it from 

affiliating with organizations that participate in political boycotts of Israel, and from 

refusing to purchase Hewlett Packard printers it otherwise would not buy. (Dkt. No. 1 at 

10-11; Dkt. No. 6 at 1-2). Plaintiffs seek to enjoin enforcement of the Act and to have it 

declared unconstitutional. (Dkt. No. 1 at 12-14; Dkt. No. 6).

AJC respectfully submits that Plaintiffs have misconstrued and mischaracterized 

HB 2617 as applied to each Plaintiff, and that their fears about it are consequently 

misplaced. Mr. Jordahl is correct that the Act does not apply to his personal 

participation in a political boycott, nor does it restrain or limit his activities of 

expression or association relating to his personal participation in such a boycott. 

Accordingly, his fears about his personal, vocal advocacy are ill-founded; he is free to 

continue to express himself. The Firm, for its part, is incorrect in its view that the Act in 

any way limits its expressive or associative activities. The Act only requires that a 

government contractor, in its capacity as a contractor, certify that it is not currently 

engaged in a boycott that impairs the State’s commerce with Israel or is carried out in an 

unlawfully discriminatory manner. The State has the right to seek such a certification in 

furtherance of its legitimate interest in ensuring that it is not forced to subsidize 

invidious or discriminatory political boycotts at taxpayer expense. The enforcement of 

this legitimate interest does not prevent contractors from continuing to express their 

political views or to associate with organizations sharing their political views. The Firm 

remains free to express itself and to associate itself politically with other organizations. 

For these reasons, AJC submits that this lawsuit is not grounded in the text, 

purpose, or scope of HB 2617 or any genuine restrictions it imposes, but rather in 

Plaintiffs’ misreading of the Act and unnecessary self-imposed restraints that the Act 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 8 of 19
4 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

neither sought nor required. To grant preliminary injunctive relief under these 

circumstances, where a plain text reading of the Act is sufficient to avoid constitutional 

concerns, is injudicious. Moreover, a hasty ruling by this Court granting such injunctive 

relief would impact not only the legitimate aims advanced by HB 2617, but could also 

serve as adverse precedent with respect to the laws of the twenty-three other States that 

have adopted legislation or executive orders toward the same end of protecting the 

States’ commerce with Israel and preventing governmental subsidies of discriminatory 

boycotts. (Dkt. No. 28, App. A). Plaintiffs’ motion for preliminary injunction should 

therefore be denied. 

ARGUMENT 

I. HB 2617 Does Not Impose Any Limits on Mr. Jordahl’s Personal 

Participation in a Boycott, nor Does It Restrain His Expression or 

Association 

HB 2617 does not place any restrictions whatsoever on Mr. Jordahl’s personal 

activities, including his personal decision to participate in a political boycott of his own 

design, as well as his expressive and associative activities in relation to that decision. 

This is clear from the Act’s text, as well as its contextual placement in the chapter of 

Arizona law governing the handling and management of public funds. HB 2617 amends 

Title 35, Chapter 2 of the Arizona Revised Statutes—pertaining to “Handling of Public 

Funds”—to add a new article (Article 9) addressing Israel Boycott Divestments. A.R.S. 

§ 35-393 et seq. Its scope is expressly limited to the activities of government contractors 

in their capacities as recipients of public funds, and thus requires a nexus to the 

government contract at issue. Because Mr. Jordahl has no such nexus in his personal 

capacity, the Act does not apply to him and imposes no limits on his decision to 

participate in a personal boycott or his related activities and expression. 

The Act defines a “boycott” as “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 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 9 of 19
5 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

adherence to calls for a boycott of Israel other than those boycotts to which 50 United 

States Code section 4607(c) applies [or] (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.” A.R.S. § 35-393(1). It then provides: 

A public entity may not enter into a contract with a company to acquire or 

dispose of services, supplies, information technology or construction unless 

the contract includes a written certification that the company is not 

currently engaged in, and agrees for the duration of the contract to not 

engage in, a boycott of Israel. 

A.R.S. § 35-393.01(A). The Act further defines a “company” as “a sole proprietorship, 

organization, association, corporation, partnership, joint venture, limited partnership, 

limited liability partnership, limited liability company or other entity or business 

association, and includes a wholly owned subsidiary, majority-owned subsidiary, parent 

company or affiliate.” A.R.S. § 35-393(2). 

The Court’s primary goal in interpreting a statute “is to give effect to legislative 

intent.” JHass Grp. L.L.C. v. Ariz. Dep’t of Fin. Insts., 238 Ariz. 377, 384 ¶ 27, 360 

P.3d 1029, 1036 (Ariz. App. 2015). Arizona follows the bedrock principle of statutory 

construction that a statute should be construed in accordance with its “plain language as 

the most reliable indicator of meaning.” Powers v. Carpenter, 203 Ariz. 116, ¶ 9, 51 

P.3d 338, 340 (2002). “A statute’s words are ‘given their ordinary meaning unless it 

appears from the context or otherwise that a different meaning is intended.’” Wright v. 

Gates, 243 Ariz. 118, ¶ 7, 402 P.3d 1003, 1005 (2017) (quoting State v. Miller, 100 

Ariz. 288, 296, 413 P.2d 757, 763 (1966)). “In construing statutes, we have a duty to 

interpret them in a way that promotes consistency, harmony, and function.” Welch–

Doden v. Roberts, 202 Ariz. 201, ¶ 22, 42 P.3d 1166, 1171 (Ariz. App. 2002). 

Moreover, “where alternate constructions are available, we should choose that which 

avoids constitutional difficulty.” Slayton v. Shumway, 166 Ariz. 87, 92, 800 P.2d 590, 

595 (1990). 

Here, a simple, plain language reading of this statute quickly dispels whatever 

concerns Mr. Jordahl may have that it could possibly be understood to reach his 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 10 of 19
6 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

decision to participate personally and individually in a political boycott of Israel, or his 

expressive or associational activities in connection with such a boycott. By its own 

language, HB 2617 only applies to contracts entered into between a “public entity” and 

a “company” to “acquire or dispose of services.” A.R.S. § 35-393.01(A). Mr. Jordahl is 

not a “company,” and according to his own allegations, he does not have any “contract” 

with a “public entity” in his individual capacity; the only contract is between the Firm 

and the Coconino County Jail District. (Dkt. No. 1 at 8; Dkt. No. 6 at 1). As to Mr. 

Jordahl’s personal activities, therefore, at least three textual requisites of the Act—

“contract,” “company,” and “public entity”—are not met. His personal decision to 

participate in a boycott, to express his vocal support of the boycott, and to associate 

with other persons or organizations sharing his views cannot bring him within the scope 

of the Act under any reasonable textual construction of the statute.1

The context of the Act’s placement in the chapter of Arizona law pertaining to 

“Handling of Public Funds” further reinforces the point that it does not apply to Mr. 

Jordahl’s personal activities. In construing an Arizona statute, this Court should give 

attention not only to its language, but must also “construe the statute in context with 

other related provisions and its place in the statutory scheme.” Glazer v. State, 242 Ariz. 

391, 394 ¶ 11, 396 P.3d 627, 630 (Ariz. App. 2017) (citing Hosea v. City of Phx. Fire 

Pension Bd., 224 Ariz. 245, 250 ¶ 23, 229 P.3d 257, 262 (Ariz. App. 2010)). The 

Arizona Legislature placed HB 2617 as a new article in the body of law dealing with 

handling and management of public funds. See A.R.S. §§ 35-301 to 35-393.03. Mr. 

Jordahl, in his personal capacity, is not a recipient of public funds from any Arizona 

public entity. And, as discussed below, the legitimate public interest to which the Act is 

directed is the Legislature’s determination to protect the State’s commerce with Israel 

and not to allow public funds to be used to subsidize an invidious or discriminatory 

 

1 The State’s Combined Response to Plaintiffs’ Motion for a Preliminary Injunction and 

Motion to Dismiss (Dkt. No. 28) (the “State’s Response”) further argues and offers 

testimonial support for the conclusion that Mr. Jordahl’s personal boycott does not meet 

the statutory definition of a “boycott of Israel.” (Dkt. No. 28 at 6-10, 12-13).

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 11 of 19
7 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

boycott. See § II, infra. Because Mr. Jordahl’s personal boycott and personal expressive 

and associational activities have no nexus to the State’s commerce with Israel, or to the 

handling or management of public funds, they are outside the scope of the Act and not 

reasonably subject to any legal restraint. 

Thus, whatever fears Mr. Jordahl may have, and whatever limitations he may 

have placed on his own expressive and associational activities, are self-imposed and are 

not grounded in the text or context of HB 2617. His constitutional claim as directed to 

his own personal activities requires neither injunctive nor declaratory relief. At most, 

the Court need only reiterate what is already plain on the face of the Act: It does not 

apply to Mr. Jordahl or his personal boycott. 

Indeed, Mr. Jordahl acknowledges repeatedly that he has expressly assumed the 

Act’s certification requirement does not apply to his individual boycott activities, and 

states that the Firm does not participate in his personal boycott. (Dkt. No. 1 at 9-10; 

Dkt. No. 6 at 15; Dkt. No. 6-1 at 4-5). But Plaintiffs argue that, because Mr. Jordahl and 

the Firm are “closely identified,” the “apparent inconsistency between the company’s 

stated position and the owner’s personal activities muddies the message.” (Dkt. No. 6 at 

150). In support of that position, Plaintiffs cite Agency for International Development v. 

Alliance for Open Society International, Inc., 570 U.S. 205, 219 (2013), which found 

that an unconstitutional funding restriction obligating recipients to have an affirmative 

policy “explicitly opposing prostitution” was not cured by “affiliate guidelines” 

permitting funding recipients to work with affiliated organizations that do not abide by 

the same condition. That case is inapposite for two reasons. 

First, the problem the Court identified in Alliance for Open Society is that the 

funding recipient is obliged to “espouse a specific belief as its own.” 570 U.S. at 219. 

Here, neither Mr. Jordahl nor the Firm is required to “espouse” any “belief” under HB 

2617. The Act obliges the Firm only to certify that “is not currently engaged in” a 

boycott of Israel as defined by the Act, while Mr. Jordahl is required to make no 

certification at all. As Mr. Jordahl concedes, he had little difficulty arranging his 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 12 of 19
8 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

actions, and those of the Firm, to comply with this certification. (Dkt. No. 1 at 9-10; 

Dkt. No. 6 at 15; Dkt. No. 6-1 at 4-5). The only restraints on espousal of “belief” by Mr. 

Jordahl are the wholly needless restrictions he has chosen to place on himself. 

Second, the Court acknowledged in Alliance for Open Society that where the 

funding recipient is “distinct” from the affiliate, the constitutional concern is confined to 

the funding recipient, because “the arrangement does not afford a means for the 

recipient to express its beliefs.” 570 U.S. at 219 (emphases in original). Here, insofar as 

Mr. Jordahl acknowledges that he has been able to keep his own activities distinct from 

those of the Firm, the only issue in this case is whether the Firm is able to express its 

beliefs. That question is taken up below, see § II, infra, but as to Mr. Jordahl personally, 

his interests are not implicated. 

II. HB 2617 Only Prevents the Firm from Engaging in an Invidious or 

Discriminatory Boycott Subsidized by the Government, and Does Not Limits 

Its Expression or Association 

HB 2617 requires the Firm, in its capacity as a government contractor, to certify 

that it is not “currently engaged in, and agrees for the duration of the contract to not 

engage in, a boycott of Israel,” as defined by the Act. A.R.S. § 35-393.01(A). Plaintiffs 

seek to cast this certification requirement as an unconstitutional prohibition on a 

government contractor’s freedom of expression and association. Ample precedent, 

however, supports the government’s legitimate interest in imposing funding conditions 

to avoid subsidizing a government contractor’s personal politics. That is precisely what 

the Act accomplishes, and it is narrowly tailored to that end. HB 2617 requires the Firm 

to certify that it is not engaged in a boycott of Israel as specifically defined by the Act, 

which would impair the State’s own commerce with Israel or place the State in the 

position of subsidizing invidious or discriminatory boycott activities with public funds. 

The Act places no ancillary restrictions on the Firm’s expressive or associational 

activities. Contrary to Plaintiffs’ mistaken assertions, the Firm remains free to express 

its views on Israel and to align itself with groups like Jewish Voice for Peace that are 

themselves engaged in boycott activities. 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 13 of 19
9 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

It is well-settled that a recipient of public funds is not entitled to have its political 

expression “subsidize[d]” with those public funds, and “[a] refusal to fund protected 

activity, without more, cannot be equated with the imposition of a ‘penalty’ on that 

activity.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 212 (2003) (quoting 

Rust v. Sullivan, 500 U.S. 173, 193 (1991) (internal citation omitted)). “Within broad 

limits, ‘when the Government appropriates public funds to establish a program it is 

entitled to define the limits of that program.” Id. at 211 (quoting Rust, 500 U.S. at 194). 

In Rust, for example, Congress had appropriated federal funding for family planning 

services and forbidden the use of such funds in programs that provided abortion 

counseling. 500 U.S. at 178. The Supreme Court upheld the restriction, finding that it 

did not compel the recipients to relinquish their constitutional right to engage in 

abortion counseling, but only insisted on public funds being spent “for the purposes for 

which they were authorized.” Id. at 196. Similarly, in American Library Association, the 

Court affirmed that Congress could impose a restriction on its Internet assistance 

programs to public libraries, requiring them to install filtering software on Internetaccessible computers. 539 U.S. at 212. The Court held that the restriction “simply 

reflects Congress’ decision not to subsidize” libraries choosing not to install such 

software, while leaving the libraries “free to do so without federal assistance.” Id. And 

in Regan v. Taxation With Representation of Washington, 461 U.S. 540, 546 (1983), the 

Court upheld a restriction limiting tax exemption status to nonprofit organizations that 

do not engage in substantial lobbying activities, and rejected the “notion that First 

Amendment rights are somehow not fully realized unless they are subsidized by the 

State.” (quoting Cammarano v. United States, 358 U.S. 498, 515 (1959)) see also id. at 

549 (“[A] legislature's decision not to subsidize the exercise of a fundamental right does 

not infringe the right, and thus is not subject to strict scrutiny.”). 

These holdings establish as a “general matter” that “if a party objects to a 

condition on the receipt of federal funding, its recourse is to decline the funds,” and 

“[t]his remains true when the objection is that a condition may affect the recipient’s 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 14 of 19
10 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

exercise of its First Amendment rights.” Alliance for Open Society, 570 U.S. at 214. The 

only limitation on this general rule is that a funding condition may not be used 

specifically to impose an “unconstitutional burden on First Amendment rights.” Id. The 

“relevant distinction,” the Court had held, “is between conditions that define the limits 

of the government spending program” and “conditions that seek to leverage funding to 

regulate speech outside the contours of the program itself.” Id. at 214-15. 

Plaintiffs’ Pickering line of authority does not alter these principles, though it 

frames the question somewhat differently in the inapposite context of termination of 

government employees or contractors for exercise of their First Amendment rights. In 

Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the Court held that a public 

teacher should be permitted to express his opinion on a matter of public concern—

whether the school system requires additional funds—without fear of retaliatory 

dismissal, while acknowledging that government employees’ protected exercise of their 

First Amendment rights depends upon the “balance between the interests of the 

[employee], as a citizen, in commenting upon matters of public concern and the interest 

of the State, as an employer, in promoting the efficiency of the public services it 

performs through its employees.” The Court extended this balancing test to termination 

of government contractors in Board of County Commissioners, Wabaunsee County v. 

Umbehr, 518 U.S. 668, 675-76 (1996), adding that “[t]he government’s interest in 

achieving its goals as effectively and efficiently as possible is elevated from a relatively 

subordinate interest when it acts as sovereign to a significant one when it acts as 

employer,” and therefore acknowledging that courts “consistently given greater 

deference to government predictions of harm used to justify restriction of employee 

speech than to predictions of harm used to justify restrictions on the speech of the public 

at large.” (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994)). Accordingly, even if 

these authorities pertaining to the termination of government employees and contractors 

applied in the context of funding conditions (though they do not), they afford deference 

to the government’s imposition of conditions that are designed to avoid harmful 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 15 of 19
11 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

conduct, particularly where they impose only incidental limits on speech or expression. 

Here, HB 2617 does not impose even incidental limitations on the Firm’s 

expressive or associational conduct. At the outset, contrary to Plaintiffs’ allegations, HB 

2617 does not require the Firm to refrain from espousing its support for boycotts, nor 

does it by its plain terms prohibit the Firm from aligning itself with or even financially 

contributing to separate organizations that support and participate in boycotts of Israel, 

like Jewish Voice for Peace. The Act’s definition of “company” is limited to the 

contractor entity itself, as well as “a wholly owned subsidiary, majority-owned 

subsidiary, parent company or affiliate.” A.R.S. § 35-393(2). The ordinary meaning of 

“affiliate” in the context of a “company” is “a ‘corporation that is related to another 

corporation by shareholdings or other means of control[.]’” Satterfield v. Simon & 

Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (quoting Black’s Law Dictionary 59 

(7th ed.1999)). It does not include separate organizations like Jewish Voice for Peace, 

with no common ownership or control. Like Mr. Jordahl, the Firm is free to express its 

views regarding boycotts and to associate itself with like-minded organizations 

supporting boycotts as it chooses, and any restrictions it has placed on its own activities 

in that regard are self-imposed, and unrelated to the plain meaning of the Act. The 

Firm’s expressive and associational activities are thus wholly unencumbered by the Act. 

Moreover, the only practical limitation the Firm alleges it has experienced as a 

consequence of its required certification under the Act is that it would like to refuse to 

purchase Hewlett Packard equipment for use in its contracted work, “based on Hewlett 

Packard’s provision of information technology services used by Israeli security 

checkpoints throughout the West Bank.” (Dkt. No. 1 at 10-11; Dkt. No. 6 at 6). 

Assuming, arguendo, that this falls within the Act’s definition of a “boycott of Israel”—

though the State has argued to the contrary (see Dkt. No. 28 at 6-10, 12-13)—it is 

within the State’s legitimate interest to refrain to subsidize boycotts that would impede 

the State’s commerce with Israel. Even if the Firm’s proposed boycott of Hewlett 

Packard equipment were found to fall within the category of constitutionally protected 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 16 of 19
12 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

expressive boycotts under NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915 

(1982), the Firm’s ability to engage in such a boycott is not absolute. 

Indeed, the State plainly has a legitimate interest in preserving its own commerce 

with Israel through its contracts, and in preventing the use of public funds to subsidize 

an invidious or discriminatory boycott. The States’ Response provides ample discussion 

of the State’s authority—under its power to regulate commerce, police power, and 

interest in prohibiting discrimination—to impose restrictions designed to prevent 

interference with commerce between the State and Israel or discriminatory conduct 

targeting the nationality, national origin, or religion of Israel and Israeli companies. 

(Dkt. No. 28 at 22-25). When these interests are coupled with the State’s wellrecognized authority to impose funding restrictions out of a refusal to use public funds 

to subsidize personal political activity, the State’s legitimate interest in defining the 

limits of its public spending programs plainly outweighs a government contractor’s 

interest in undertaking an invidious or discriminatory boycott against Israel. See 

Alliance for Open Society, 570 U.S. at 214; Am. Library Ass’n, 539 U.S. at 211-12; 

Rust, 500 U.S. at 193-94; Regan, 461 U.S. at 546. The Firm is free to boycott, but it is 

not free to demand that public funds be used to subsidize any and all boycotts it may 

desire to undertake, without regard to the State’s interest in protecting commerce or 

preventing discrimination. 

CONCLUSION 

HB 2617 does not impose any limitations on Plaintiffs’ expressive or 

associational conduct, and does not preclude Mr. Jordah’s personal boycott. Moreover, 

the State clearly has a legitimate interest in refusing to allow its public funds to be used 

to subsidize more invidious and discriminatory boycotts of the type not at issue in this 

case. Under these circumstances, a preliminary injunction is neither supported nor 

necessary, where a simple textual and contextual reading of the Act can avoid all 

constitutional concerns. Accordingly, for these reasons, Plaintiffs’ demand for 

preliminary injunctive relief should be denied. 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 17 of 19
13 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

DATED this 2nd day of February, 2018. 

 GREENBERG TRAURIG, LLP 

 By: /s/ Brian J. Schulman Brian J. Schulman 

Gregory E. Ostfeld (pro hac vice application 

forthcoming) 

Counsel for Amicus Curiae 

American Jewish Committee

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 18 of 19
14 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

CERTIFICATE OF SERVICE 

 I hereby certify that on February 2, 2018, I electronically transmitted the attached 

document to the Clerk’s Office using CM/ECF System for filing and distribution to all 

registered participants of the CM/ECF System: 

By: /s/ Amy L. Hershberger Employee, Greenberg Traurig, LLP 

Case 3:17-cv-08263-DJH Document 30-1 Filed 02/02/18 Page 19 of 19