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MARK BRNOVICH 

ATTORNEY GENERAL

Drew C. Ensign (No. 25463) 

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

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

Evan G. Daniels (No. 30624) 

Keith J. Miller (No. 29885) 

Aaron Duell (No. 33450) 

 Assistant Attorneys General 

2005 N. Central Avenue 

Phoenix, Arizona 85004 

Telephone: (602) 542-5200 

Drew.Ensign@azag.gov 

Attorneys for Defendant Mark Brnovich 

in his official capacity as Attorney General 

and Proposed Intervenor-Defendant 

State of Arizona 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, 

P.C., 

 Plaintiffs, 

vs. 

Mark Brnovich, Arizona Attorney 

General; Jim Driscoll, Coconino County 

Sheriff; Matt Ryan, Coconino County 

Board of Supervisors Chair; Lena 

Fowler, Coconino County Board of 

Supervisors Vice Chair; Elizabeth 

Archuleta Coconino County Board of 

Supervisors Member; Art Babbott, 

Coconino County Board of Supervisors 

Member; Jim Parks, Coconino County 

Board of Supervisors Member; Sarah 

Benatar, Coconino County Treasurer, all 

in their official capacities, 

 Defendants. 

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

STATE’S COMBINED RESPONSE TO 

PLAINTIFFS’ MOTION FOR A 

PRELINARY INJUNCTION AND 

MOTION TO DISMISS 

Oral Argument Requested 

Case 3:17-cv-08263-DJH Document 28 Filed 01/18/18 Page 1 of 46
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TABLE OF CONTENTS 

TABLE OF AUTHORITIES .............................................................................................. iii

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

FACTUAL BACKGROUND ............................................................................................. 3

LEGAL STANDARD ......................................................................................................... 7

ARGUMENT ...................................................................................................................... 8

I. PLAINTIFFS DO NOT FALL WITHIN THE ACT’S NARROW SCOPE ......... 8

A. The Act Only Addresses “Boycott[s] Of Israel,” Which Plaintiffs’ 

Boycott Is Not ............................................................................................... 8 

B. The Act Does Not Regulate Any Speech Or Prohibit Contributions 

To Those Engaged In Boycotts ................................................................... 11 

C. The Act Does Not Reach Private Individuals And Consumer Boycotts. ... 12 

D. Plaintiffs’ Boycott Is Self-Generated And Not “In Compliance With 

Or Adherence To” Others’ Calls For Boycotts Of Israel ............................ 12 

E. If The Court Believes That The Act May Apply To Plaintiffs, It Should 

Abstain Under Pullman Or Certify That Question Of State Law ............... 14 

II. PLAINTIFFS’ FIRST AMENDMENT CLAIMS FAIL ..................................... 15

A. Plaintiffs’ Claims Fail Under Longshoremen And Briggs .......................... 15 

B. The Act Neither Prohibits Nor Compels Any Actual Speech ..................... 17 

C. Plaintiffs’ Desired Commercial Conduct Is Not Protected ......................... 18 

D. The State Could Preclude Boycotts Of Israel By Public Businesses 

Through Direct Regulation ......................................................................... 22 

1. State Regulation of Commerce/General Police Power ......................... 22 

2. State Interest In Prohibiting Discrimination ......................................... 23 

3. O’Brien .................................................................................................. 25 

E. Even If Plaintiffs Have A Right To Boycott Israel, The State Need Not 

Subsidize Plaintiffs’ Boycotts With Expenditures Of Public Monies ........ 25 

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F. Plaintiffs’ Case Law Is Inapposite .............................................................. 27 

1. Claiborne Hardware ............................................................................. 27 

2. Baird ...................................................................................................... 29 

3. Pickering ............................................................................................... 29 

4. Alliance For An Open Society ............................................................... 30 

G. Plaintiffs’ Overbreadth Challenge Fails ...................................................... 30 

III. PLAINTIFFS’ ALLEGED INJURIES ARE INSUFFICIENT TO JUSTIFY 

INJUNCTIVE RELIEF ....................................................................................... 31

IV. ANY INJUNCTIVE RELIEF SHOULD BE LIMITED TO PLAINTIFFS ....... 32

V. THE CLAIMS AGAINST THE ATTORNEY GENERAL MUST BE 

DISMISSED ........................................................................................................ 33

CONCLUSION ................................................................................................................. 34

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TABLE OF AUTHORITIES 

Cases

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

133 S. Ct. 2321 (2013) ........................................................................................ 3, 26, 30 

Airbnb, Inc. v. City & County of San Francisco 

 217 F. Supp. 3d 1066 (N.D. Cal. 2016) ......................................................................... 24 

Ashcroft v. Iqbal 

 556 U.S. 662 (2009) ........................................................................................................ 8

Baird v. State Bar of Arizona

 401 U.S. 1 (1971) .......................................................................................................... 29 

Barbour v. Wash. Metro. Area Transit Auth.

 374 F.3d 1161 (D.C. Cir. 2004) .................................................................................... 28 

Barnes v. Glen Theatre, Inc.

 501 U.S. 560 (1991) ...................................................................................................... 23 

Briggs & Stratton Corp. v. Baldrige

 728 F.2d 915 (7th Cir. 1984) ..................................................................................... 2, 17 

Broadrick v. Oklahoma

 413 U.S. 601 (1973) ...................................................................................................... 31 

Burwell v. Hobby Lobby Stores, Inc.

 134 S. Ct. 2751 (2014) .................................................................................................. 31 

Califano v. Yamasaki

 442 U.S. 682 (1979) .................................................................................................. 7, 33 

Chandler v. State Farm Mut. Auto. Ins.

 598 F.3d 1115 (9th Cir. 2010) ......................................................................................... 8 

Christian Legal Soc’y v. Martinez

 561 U.S. 661 (2010) ...................................................................................................... 27 

City of San Diego, Cal. v. Roe

 543 U.S. 77 (2004) ........................................................................................................ 30

Clapper v. Amnesty Int’l USA

 568 U.S. 398 (2013) ........................................................................................................ 8

C-Y Dev. Co. v. City of Redlands

 703 F.2d 377 (9th Cir. 1983) ......................................................................................... 14 

E. & J. Gallo Winery v. Gallo Cattle Co. 

967 F.2d 1280 (9th Cir. 1992) ....................................................................................... 33 

Elk Grove Unified Sch. Dist. v. Newdow

 542 U.S. 1 (2004) ............................................................................................................ 8 

Equity Income Partners, LP v. Chicago Title Ins. Co.

 828 F.3d 1040 (9th Cir. 2016) ....................................................................................... 15 

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FTC v. Superior Court Trial Lawyers Ass’n

 493 U.S. 411 (1990) ................................................................................................ 28, 29 

Grove City Coll. v. Bell

 465 U.S. 555 (1984) ...................................................................................................... 28 

Harris Cnty. Comm’rs Court v. Moore

 420 U.S. 77 (1975) ........................................................................................................ 15

Holcomb v. Iona Coll.

 521 F.3d 130 (2d Cir. 2008) .......................................................................................... 24 

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

 456 U.S. 212 (1982) .................................................................................................. 2, 16 

Locke v. Davey

 540 U.S. 712 (2004) ...................................................................................................... 27 

Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue

 460 U.S. 575 (1983) ...................................................................................................... 23 

NAACP v. Claiborne Hardware Co.

 458 U.S. 886 (1982) ................................................................................................ 28, 29 

National Endowment for the Arts v. Finley

 524 U.S. 569 (1998) ...................................................................................................... 27 

Oakland Tribune, Inc. v. Chronicle Publ’g Co.

 762 F.2d 1374 (9th Cir. 1985) ....................................................................................... 32 

Pennhurst State Sch. & Hosp. v. Halderman

 465 U.S. 89 (1984) ........................................................................................................ 33

Pickering v. Bd. of Ed.

 391 U.S. 563 (1968) ...................................................................................................... 30 

Pickup v. Brown

 740 F.3d 1208 (9th Cir. 2014) ....................................................................................... 19 

Porter v. Jones

 319 F.3d 483 (9th Cir. 2003) ......................................................................................... 15 

Regan v. Taxation With Representation of Washington 

461 U.S. 540 (1983) ................................................................................................ 26, 27

Roberts v. U.S. Jaycees

 468 U.S. 609 (1984) ...................................................................................................... 24 

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

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

S.D. Warren Co. v. Me. Bd. of Envlt. Prot.

 547 U.S. 370 (2006) ................................................................................................ 11, 25 

San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee

 483 U.S. 522 (1987) ................................................................................................... 16 

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San Remo Hotel v. City and Cnty. of S.F.

 145 F.3d 1095 (9th Cir. 1988) ....................................................................................... 14 

Takiguchi v. MRI Int'l, Inc.

 611 F. App'x 919 (9th Cir. 2015) .................................................................................. 32 

United States v. O’Brien

 391 U.S. 367 (1968) ................................................................................................ 25, 26 

United States v. Oakland Cannabis Buyers’ Co-op.

 532 U.S. 483 (2001) ...................................................................................................... 33 

United States v. Williams

 553 U.S. 285 (2008) ...................................................................................................... 31 

Ward v. Rock Against Racism

 491 U.S. 781 (1989) ...................................................................................................... 25 

Weinberger v. Romero-Barcelo

 456 U.S. 305 (1982) ...................................................................................................... 32 

Winter v. NRDC

 555 U.S. 7 (2008) ...................................................................................................... 7, 31

Statutes

19 U.S.C. § 4452 ........................................................................................................... 4, 23 

50 U.S.C. § 4607 ............................................................................................................. 2, 4 

A.R.S. § 12-1861 ............................................................................................................... 15 

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

2016 Ariz. Sess. Laws. Ch. 46 (2d Reg. Sess.) ........................................................... 4, 5, 9 

Constitutional Provisions

U.S. Const. amend. I .......................................................................................................... 18 

Other Authorities

How the Israel Anti-Boycott Act Threatens First Amendment Rights (July 26, 2017) ..... 17 

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INTRODUCTION 

Plaintiffs’ motion for preliminary injunction and Amended Complaint invoke a 

dizzying array of doctrines and case snippets to gloss over critical problems that are fatal 

to their claims: (1) A.R.S. § 35-393 et seq. (the “Act”) does not apply to Plaintiffs’ 

desired conduct in the first place; and (2) even if it did, the Act does not violate the First 

Amendment because it regulates conduct that is not inherently expressive, and it imposes 

no penalty on anyone—instead only denying a public subsidy to those engaged in 

conduct contrary to state policy. 

As an initial matter, this case can be resolved on the simple basis that the Act does 

not apply to Plaintiffs. The State agrees with Plaintiffs that the Act does not reach any 

actions taken by Plaintiff Jordahl in his personal capacity. The State also does not 

interpret the Act to prohibit Plaintiffs from associating with Jewish Voices for Peace 

(“JVP”) by providing contributions or support. As long as Plaintiff Mikkel (Mik) 

Jordahl, P.C. (“Jordahl P.C.”) is not itself engaged in a boycott of Israel, the Act does not 

apply. The State also interprets the Act’s requirement not to engage in a “boycott of 

Israel” to mean that the boycott is actually a general boycott of Israel—i.e., a broad or 

total boycott of Israel such as those called for by the Boycott, Divest and Sanctions 

(“BDS”) movement, to which the Act is squarely addressed. Plaintiffs, however, appear 

to be perfectly willing to deal with a wide variety of Israeli companies and companies 

doing business with Israel. Jordahl’s boycott thus differs wildly from the complete, 

BDS-type boycotts to which the Act is directed. And to the extent that this Court thinks 

that the Act might apply to Jordahl, it should either abstain under Pullman or certify that 

question of state law to the Arizona Supreme Court. 

In any event, even assuming the Act did apply to Plaintiffs, their First Amendment 

claims fail. Indeed, while Plaintiffs cobble together pieces of various cases to amass a 

fractured argument, Plaintiffs amazingly ignore that federal courts have rejected fully 

assembled claims that are all but identical to Plaintiffs’ here. For example, in 

International Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212 (1982), 

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the Supreme Court considered whether there was any First Amendment right for a union 

to boycott goods from the Soviet Union on the basis of political disagreement with that 

country’s policies. Replace “union” with “lawyer,” and “Soviet Union” with “Israel,” 

and that effectively is this case. The Court unanimously concluded there was no such 

right, rejecting the contrary contention. Id. at 226. Similarly, federal law since 1979 has 

prohibited all Americans from participating in any boycott of Israel led by foreign 

nations. See 50 U.S.C. § 4607. That law was challenged and uniformly upheld, 

including in Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984). In the 

ensuing decades, the constitutionality of that Israel boycott ban has become settled law. 

Even if Longshoremen and Briggs were swept aside, Plaintiffs’ First Amendment 

challenge would still fail. The Act regulates conduct, not pure speech or even expressive 

conduct. The Act does not prevent Plaintiffs from saying anything. Plaintiffs may, for 

example: (1) criticize Israel to their hearts’ content, (2) call for changes in U.S or State 

policy, (3) advocate for others to boycott Israel, and (4) make abundantly clear that all 

business they do with Israelis is under their most vociferous protest. No such speech is 

subject to any regulation whatsoever. 

As was the case in Rumsfeld v. FAIR, where law schools sought to boycott the 

military, the Act here only “regulates conduct, not speech. It affects what [Plaintiffs] 

must do ... not what they may or may not say.” 547 U.S. 47, 60 (2006). And the desired 

boycott does not enjoy protection as expressive conduct. See id. at 58-65. Instead, First 

Amendment protection extends only to conduct that is “inherently expressive.” Id. at 66. 

Much like FAIR, Plaintiffs’ desired conduct—which here seemingly consists of declining 

to buy Hewlett-Packard (“HP”) products, Jordahl Decl. ¶ 24—is minimally expressive at 

best. To the vast majority of people, a company’s selection of a Lexmark printer instead 

of one from HP would likely be perceived as a decision about price, features, service, 

warranty, etc. Not a grand political statement. 

Finally, even if Plaintiffs’ desired conduct were entitled to any consideration under 

the First Amendment, it would be dramatically outweighed by the State’s interests. The 

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only things that the Act actually prohibits Jordahl’s corporation from engaging in are 

particular forms of commercial conduct—i.e., a classic form of permissible regulation of 

commerce. Moreover, the Act implements and augments the State’s existing prohibition 

on discrimination based on national origin. And prohibiting invidious, status-based 

discrimination in the buying and selling of goods is a content-neutral and compelling 

government interest that has repeatedly been found to outweigh attempted invocations of 

the First Amendment in defense of the discrimination. 

The Act would thus be constitutional even if it were a direct regulation of all 

commercial conduct in the State in general. But it is not. Instead, the Act’s impact on 

conduct/purported expression is even more attenuated. The Act only imposes 

requirements on those seeking contracts with the State and its subdivisions—i.e., those 

seeking state funds. The State thus only denies a subsidy to those engaged in particular 

commercial conduct with which the State disagrees, which does not violate the First 

Amendment. Even one of Plaintiffs’ principal cases explains as much: “[I]f a party 

objects to a condition on the receipt of [government] funding, its recourse is to decline 

the funds. This remains true when the objection is that a condition may affect the 

recipient’s exercise of its First Amendment rights.” Agency for Int’l Dev. v. All. for Open 

Soc’y Int’l, Inc., 133 S. Ct. 2321, 2328 (2013) (cited at 14-16 of Plaintiffs’ motion). 

For all of these reasons, Plaintiffs are not likely to prevail on the merits. But even 

if that were not the case, Plaintiffs’ request for a broad preliminary injunction is still 

improper. Here, Plaintiffs’ injuries are merely trifling and do not justify any injunctive 

relief. And even if they did, the balance of harms and public interests tip sharply in favor 

of a limited injunction that applies only to Plaintiffs. 

FACTUAL BACKGROUND 

Federal Law Regarding Anti-Israel Boycotts

 The Arab-Israeli conflict began in 1948 and has yet to reach any final peace 

settlement. Israel is a close ally of the United States, and Congress and the President 

have repeatedly sought to protect Israel from economic warfare aimed at undermining it 

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as a state. See, e.g., 19 U.S.C. § 4452. 

Since 1979, federal law has prohibited all U.S. residents from participating in 

certain boycotts of Israel. Concerned that foreign nations were using economic coercion 

against Israel, Congress enacted the Export Administration Act of 1979. Among other 

provisions, it directs the “President [to] issue regulations prohibiting any United States 

person ... from taking or knowingly agreeing to ... support any boycott fostered or 

imposed by a foreign country against a country which is friendly to the United States 

[e.g., Israel].” 50 U.S.C. § 4607. This federal prohibition on participating in foreignstate-led boycotts of Israel remains in place today.1

 Congress has since set forth official U.S. policy regarding BDS boycotts. 

19 U.S.C. § 4452. In particular, Congress “opposes politically motivated actions that 

penalize or otherwise limit commercial relations specifically with Israel, such as boycotts 

of, divestment from or sanctions against Israel [i.e., BDS campaigns]” and explained that 

such boycotts “are contrary to the principle of nondiscrimination[.]” Id. § 4452(b)(4)-(5). 

Congress further directed that a “principal trade negotiating objectives of the United 

States” is “[t]o discourage politically motivated boycotts of, divestment from, and 

sanctions against Israel[.]” Id. § 4452(c). 

The State’s Enactment Of The Act

 Concerned about the use of boycotts as “economic warfare” against Israel, the 

Arizona Legislature enacted, and the Governor signed, the Act. See 2016 Ariz. Sess. 

Laws. Ch. 46 (2d Reg. Sess.). The Act was passed by bipartisan supermajorities: 42-16 

in the House and 23-6 in the Senate. See Ensign Decl. Exs. I-J. The Act has two 

operative provisions. One generally prohibits the State from investing in companies 

engaged in boycotts of Israel. See A.R.S. § 35-393.02. That provision is unchallenged 

here. Only the second is, which prohibits the State and its subdivisions from “enter[ing] 

 

1

 The Anti-Israel boycott regulations have been extended by each President since 1994 

pursuant to their powers under 50 U.S.C. § 1701 et seq., and the regulations remain in 

force today. See 50 U.S.C.§ 4601 et seq.

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into a contract with a company” unless the company provides “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). By its terms, the Act applies to 

“boycott[s] of Israel,” not boycotts “concerning” or “implicating” Israel. See, e.g., 

A.R.S. §§ 35-393(1)(a), -393.01(A), -393.02. It also provides definitions for “boycott” 

and “company.” Id. § 35-393. 

 The Legislature made several findings in the Act, including that “Companies that 

refuse to deal with ... Israel, or entities that do business with or in [Israel], make 

discriminatory decisions on the basis of national origin[.]” See 2016 Ariz. Sess. Laws ch. 

46, § 2(C). Those findings expressly reference federal policy of “examining a company’s 

promotion or compliance with” BDS campaigns in “awarding grants and contracts” and 

in making investment decisions. Id. § 2(F). And the Act includes an express severability 

provision stating that if any part is invalidated, the “invalidity does not affect any other 

provision or application of this article that can be given effect without the invalid 

provision or application.” A.R.S. § 35-393.03. 

Enactments By Other States And Pending Federal Legislation

 The State is hardly alone in placing restrictions on BDS boycotts. Twenty-three 

other states have enacted legislation or issued executive orders to similar effect. See 

Appendix A. Congress is also considering legislation that would expand the existing 

federal ban on boycotts of Israel to include most BDS campaigns, S. 720 and H.R. 1697. 

See Appendix B. Both bills are co-sponsored by majorities in each house. Id.

Jordahl’s Contract And Certification

 Jordahl’s company first entered into a contract with the Jail District to provide 

legal services about 12 years ago. Jordahl Decl. ¶12. That contract has been renewed 

periodically ever since. The most recent extension extended the contract from July 1, 

2016 to June 30, 2017. Id. Ex. 3. 

Following passage of the Act, Coconino County asked Jordahl’s company to sign 

a certification under the Act. Id. ¶¶15-19 & Ex. 1. Jordahl signed the required 

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certification on October 14, 2016. Id. Ex. 1. That same day, Jordahl wrote a letter to a 

Coconino County Deputy Attorney explaining that he was signing as his business and not 

“in [his] personal capacity unrelated to any government contract,” and that he was 

“interpreting the term ‘affiliate’ in the addendum and the law to apply only to formal 

business relationships.” Id. Ex. 2. No State or Coconino County official has ever 

objected to Jordahl’s limitation and interpretation. Ensign Decl. Ex. A, Jan. 8, 2018 

30(b)(6) Deposition Jordahl P.C. (hereinafter “Dep.”) 131:1-133:5. 

 In that same October 2016 letter, Jordahl expressed his view that the Act was an 

“unconstitutional violation of the 1st Amendment.” Jordahl Decl. Ex. B. Jordahl did not 

file suit at that time, however. 

 The County subsequently sent Plaintiffs a proposed renewal of the Jail District 

legal services contract on November 17, 2017. Id. ¶¶28-30. The new contract would run 

from July 1, 2017 to June 30, 2018. Id. Ex. 5. The County also included another 

certification under the Act. Id. ¶30. 

 Although Plaintiffs had previously signed the certification that Jordahl’s company 

was not engaged in a boycott of Israel, Plaintiffs refused to sign the second certification. 

Id. ¶¶3, 24, 31-32. Jordahl has continued performing work under the contract as if it had 

been renewed, and he expects that he will be paid for his services. Dep. 167L21-169:5. 

Jordahl’s Boycott

Jordahl is presently engaged in boycotting activity in his personal capacity, which 

he would like to extend to his business. Jordahl boycotts companies whose policies he 

disagrees with. Jordahl, for example, does not do business with the Trump Organization. 

Dep. 13:22-15:22. Jordahl also refuses to travel to certain countries such as Syria and 

Myanmar based on his disagreements with the policies of the countries’ governments. Id. 

Israel is not one of those countries, however. Instead, Jordahl has recently travelled to 

Israel and did business with a number of companies during his trip. Dep. 147:25-148:9. 

 Although Jordahl states that he was inspired by other organizations’ boycotts, his 

own boycott is unique and does not match any organization’s. Dep. 29:15-30:17; see 

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also Dep. 11:13-17, 27:4-16. Jordahl’s declaration indicates that he would like to boycott 

Hewett Packard, based on HP’s “provision of information technology services used by 

Israel checkpoints throughout the West Bank.” Jordahl Decl. ¶24. Plaintiffs’ Complaint, 

Motion for a Preliminary Injunction and supporting declaration do not mention any other 

companies that Plaintiffs desire to boycott. 

 At a Rule 30(b)(6) deposition, Jordahl indicated “my boycott is a bit more limited, 

and I don’t necessarily want to boycott Israel.” Dep. 34:8-17; accord 33:13-19 (“My 

personal boycott is limited.... There are others that ... make it broader. ... I don’t go that 

far.”); 35:7-9 (“I’m not aware of boycotting Israeli companies per se ....”); see also 

40:22-41:9. Instead, Jordahl’s boycott is limited to “businesses that are involved in 

perpetuating the occupation of the West Bank.” Dep. 13:18-21; accord 31:22, 33:14-15, 

38:6-7, 53:19-20. He further explained that he is not boycotting “companies based in 

Israel that don’t have connection to the settlements,” and he is “sure there are” Israeli 

companies that he would do business with. Dep. 59:6-22, 97:7-19. 

LEGAL STANDARD 

 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 

Winter v. NRDC, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction 

must establish that he is likely to succeed on the merits, that he is likely to suffer 

irreparable harm in the absence of preliminary relief, that the balance of equities tips in 

his favor, and that an injunction is in the public interest.” Id. at 21. Any injunctive relief 

ordered “should be no more burdensome to the defendant than necessary[.]” Califano v. 

Yamasaki, 442 U.S. 682, 702 (1979). 

“To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Dismissal is appropriate under 

Rule 12(b)(1) where Plaintiffs lack standing or the case is unripe. Chandler v. State 

Farm Mut. Auto. Ins., 598 F.3d 1115, 1122 (9th Cir. 2010). 

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ARGUMENT 

I. PLAINTIFFS DO NOT FALL WITHIN THE ACT’S NARROW SCOPE 

As an initial matter, none of Plaintiffs’ First Amendment claims are actually 

presented here because this case can be resolved on simple statutory grounds: Plaintiffs’ 

desired conduct notably does not fall within the narrow scope of the Act. As a result, this 

Court should decline to reach Plaintiffs’ constitutional arguments. See, e.g., Elk Grove 

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) (Federal courts have a “‘deeply 

rooted’ commitment ‘not to pass on questions of constitutionality’ unless adjudication of 

the constitutional issue is necessary.”). Moreover, for the same reasons, Plaintiffs lacks 

standing to challenge the Act and will suffer no irreparable injury absent an injunction. 

See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411, 422 (2013) (Article III 

standing to challenge statute lacking where the act “target[ed] other individuals.”). 

A. The Act Only Addresses “Boycott[s] Of Israel,” Which Plaintiffs’ 

Boycott Is Not 

This case can be resolved for the simple reason that Plaintiffs’ pertinent conduct is 

not “a boycott of Israel” under the Act. See A.R.S. § 35-393.01(A). The Act does not 

apply to all boycotts that may conceivably implicate Israel. Instead, a company must 

only certify that it is not engaged in, and will not engage in, “a boycott of Israel.” A.R.S. 

§ 35-393.01(A) (emphasis added); accord A.R.S. § 35-393(1)(a) (defining “boycott” with 

specific reference to “a boycott of Israel”). Indeed, the Act repeatedly uses the phrases 

“boycott of Israel” and “boycott Israel.” See id. §§35-393(1)(a) (“boycott of Israel”); 35-

393(7) (“boycott Israel”); 35-393.01(A) (“boycott of Israel”); 353-393.01(B) (“boycott 

Israel”); 35-393.02(B)(3) (“boycott of Israel”), (D) (same). 

The State reads “boycott of Israel” in accord with its plain text: the boycott must 

either be directed at the Israeli government itself or at companies solely because they are 

either located in Israel or do business with/in Israel. If a company is engaged in a 

different type of boycott—e.g., a general boycott of companies whose practices it 

disagrees with—that is not “a boycott of Israel,” regardless of whether Israel may be 

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implicated in some attenuated manner. A company engaged in a boycott of all products 

made in sweatshops would not fall within the scope of the Act, even if some sweatshops 

in Israel were boycotted along with other sweatshops—that is a general boycott of 

sweatshops that might implicate Israel, but not a boycott of Israel. Instead, the legislature 

intended “a boycott of Israel” to mean just that—a general boycott of Israel qua Israel. 

This interpretation is supported by the legislative findings. The findings twice 

refer to boycotting/divestment/sanctions, See 2016 Ariz. Legis. Serv. Ch. 46 §2(6), 

which advocate complete or near-complete boycotts of all Israeli companies (and 

sometimes those doing business with/in Israel) solely because of the connection to Israel. 

See, e.g., Ensign Decl. Ex. C (“The Palestinian BDS National Committee (BNC) calls for 

a boycott of all Israeli products”).2

 This reiterated reference to BDS-related activities 

underscores the legislature’s focus on deterring such boycotting campaigns. Such 

complete boycotts of Israel are the “boycotts of Israel” at which the Act is directed. 

Jordahl’s boycott by his own admission does not meet this definition. Jordahl 

testified “my boycott is a bit more limited ... and I don’t necessarily want to boycott 

Israel.” Dep. 34:8-17 (emphasis added); accord 33:13-19 (“My personal boycott is 

limited.... There are others that ... make it broader.... I don’t go that far.”); 35:7-9 (“I’m 

not aware of boycotting Israeli companies per se ....”); 40:22-41:9 (“The BDS campaign 

is not limited to the settlements, but addresses all of Israel. Is that your understanding? 

That’s my understanding.... [A]gain ... my personal belief on that, that is [my boycott 

is] more limited.... I look at it in a more limited fashion.”); see also 37:19-24 (“[T]he 

wider [BDS] movement is calling for a boycott of—essentially the Israeli economy ... in 

an effort to pressure Israel to agree to a two-state solution or at least equal rights.”). 

Instead, Jordahl’s boycott is limited to “businesses that are involved in 

perpetuating the occupation of the West Bank.” Dep. 13:18-21; accord 31:22, 33:14-15, 

 

2

 Indeed, some even go so far as boycotting all academic and artistic interactions with 

Israeli institutions, without regard to political positions of the individual academics or 

artists boycotted. Ensign Decl. Ex. D; Dep. 37:19-24. 

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38:6-7, 53:19-20; see also Dep. 69:9-12 (agreeing with paragraph 3 of his declaration that 

he “participate[s] in a political boycott of consumer goods and services offered by 

businesses supporting Israel’s occupation of the Palestinian territories”). And Jordahl 

stated that he will take companies off of his boycott list if they change their practices. 

Dep. 22:23-24. He also stated that he is not boycotting “companies based in Israel that 

don’t have connection to the settlements,” and he is “sure there are” Israeli companies 

that he would do business with. Dep. 59:6-22, 97:7-19. 

Instead of engaging in “a boycott of Israel,” Jordahl boycotts those companies he 

has political disagreements with. For example, he is boycotting Trump-owned family 

businesses because of his disagreements with the President (which presumably may 

include policy vis-à-vis Israel). Dep. 13:22-15:22. That does not fall within the Act. He 

similarly is boycotting HP personally not because HP does business with and in Israel at 

all, but because he disagrees with particular business deals in which HP has engaged. 

Dep. 13:18-21. There is no reason to believe that Plaintiffs’ boycott of HP would be any 

different if the HP business dealings to which Plaintiffs objected related to Myanmar or 

Syria, rather than Israel. Cf. Dep. 13:22-15:22. 

Indeed, Jordahl is perfectly willing and eager to deal with Israeli companies and 

companies doing business in Israel with which he has no political disagreements. Dep. 

147:25-148:9 (during recent trip to Israel, he purchased things from Israeli companies). 

Indeed, while there are entire countries that he will not visit based on his disagreement 

with the government’s policies (including Egypt, Myanmar and Syria)—Israel is not one 

of them. Dep. 13:22-15:22 (identifying countries he would not visit); see also 149:14-18 

(stating that he encouraged his son to take advantage of a Birthright Israel trip). And 

Jordahl admitted that his boycott would extend to companies simply “advocat[ing] for 

Israel’s policies in settlements” and Palestinian companies if they were “cooperating 

with” Israeli settlements on the West Bank, Dep. 66:2-5; 65:7-12, 64:4-7—showing this 

is about political disagreement, not doing business in Israel. That differs substantially 

from the BDS boycotts the Act targets, and not a “boycott of Israel” under the Act. 

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B. The Act Does Not Regulate Any Speech Or Prohibit Contributions To 

Those Engaged In Boycotts 

The State also does not read the Act to address any pure speech. “Boycott” is 

defined to mean “[(1)] refus[ing] to deal, [(2)] terminating business activities or 

[(3)] performing other actions” with respect to Israel. Id. § 35-393(1). The first two 

clearly refer to conduct alone. And the third refers to “actions,” rather than any sort of 

speech or communication by its plain terms. Moreover, “other actions” must be read 

under the noscitur a sociis canon, and thus given a similar meaning as “engaging in a 

refusal to deal” and “terminating business activities”—i.e., also referring to types of 

commercial conduct, not speech. See, e.g., S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 

547 U.S. 370, 378 (2006) (“The canon, noscitur a sociis, reminds us that a word is known 

by the company it keeps, and is invoked when a string of statutory terms raises the 

implication that the words grouped in a list should be given related meaning.” (internal 

quotation marks omitted)). For these reasons, the Act is not triggered by any speech; 

only economic conduct.3

Nor does the Act require that a company not associate with or support those 

engaged in a boycott of Israel. Instead, the Act imposes a single certification 

requirement, i.e., that the company certifies that it “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 sole requirement is that the company itself not boycott Israel.4

 

 

3

 The State does not interpret “other actions” to reach speech for two additional reasons. 

First, any such “other actions” must satisfy either subsection (a) or (b) of § 35-393(1). 

Subsection (b) refers only to “discriminat[ion]”—which is conduct, not speech. See infra 

at 20, 24-25. And subsection (a) similarly refers to conduct, i.e., “compl[ying] with” or 

“adher[ing] to” foreign-led boycotts. Second, if there is any residual doubt, the canon 

teaching that statutes are to be construed to avoid constitutional issues should resolve it in 

favor of “other actions” referring to conduct alone. National Fed’n of Indep. Bus. v. 

Sebelius, 567 U.S. 519, 563 (2012) (“‘[E]very reasonable construction must be resorted 

to, in order to save a statute from unconstitutionality.’” (citation omitted)). 

4

 The State is also mindful that contributions can qualify as speech. See generally 

Citizens United v. FEC, 558 U.S. 310 (2010). And, as explained above, the Act does not 

reach any speech, only conduct. Indeed, contributions are just one of the many actions 

that Plaintiffs could take without implicating the Act. See infra Section II.B. 

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For that reason, the Act does not apply to Plaintiffs’ desire to contribute or provide 

office support to JVP. See Complaint ¶ 44; Jordahl Decl. ¶ 25. Moreover, in the case of 

Jordahl and his P.C., it is well-established that “[a] lawyer’s representation of a client ... 

does not constitute an endorsement of the client’s political, economic, social or moral 

views or activities.” Model Rules of Professional Conduct 1.2(b). Therefore, consistent 

with longstanding rules about attorneys, an attorney simply providing legal and support 

services to those boycotting Israel would not be a “boycott of Israel” any more than 

providing legal representation to a person accused of murder would constitute supporting 

murder. Put differently, the Act does not require Jordahl to boycott boycotters; he merely 

must not be one himself. Instead, as long as Jordahl P.C. is not itself boycotting Israel, it 

may truthfully sign the Act’s certification requirement. 

C. The Act Does Not Reach Private Individuals And Consumer Boycotts. 

The State notably agrees with Plaintiffs that the Act does not apply to Jordahl “‘in 

[his] personal capacity unrelated to any government contract,’” and that “‘affiliate’ ... 

[refers] only to formal business relationships.” Complaint ¶ 35. Because the Act only 

applies to government contracts with “compan[ies],” and the contract here is with 

Jordahl’s corporation (Jordahl P.C.), the Act cannot be fairly read to apply to Jordahl in 

his personal capacity. A.R.S. § 35-393.01. 

The State, like Plaintiffs, also does not read “affiliate” to include individual 

owners of companies that contract with the government or other companies also owned 

by the same individual. See Dep. 50:9-10; 105:10. Thus, if Jordahl were to create a 

separate company to perform legal services outside of his contract with the Jail District, 

by itself that new P.C. would not be an “affiliate” of his existing P.C. merely because 

they are both owned by Jordahl. 

D. Plaintiffs’ Boycott Is Self-Generated And Not “In Compliance With Or 

Adherence To” Others’ Calls For Boycotts Of Israel 

Plaintiffs also do not fall within the scope of the Act because their conduct/desired 

conduct does not fall within either subsection (a) or (b) of the definition of “boycott.” 

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See A.R.S. § 35-393(1). Because Plaintiffs are willing to do business with Israelis 

generally and have no apparent anti-Jewish animus at all, their conduct does not fall 

within subsection (b). And Jordahl’s boycott is not “[i]n compliance with or adherence to 

calls for a boycott of Israel,” because he is not complying with or adhering to anyone 

else’s boycott. Jordahl’s boycott is, by admission, sui generis. He develops his own list 

of companies to boycott based on his own research, does not rely on any particular 

organization’s list, and has admitted that his campaign is “more limited” than JVP’s and 

others’ BDS boycotts. Dep. 29:15-30:17, 55:15-25.5

Plaintiffs’ boycott is unique and admittedly differs from JVP’s and others’ BDS 

boycotts. He is thus not complying with/adhering to those boycotts; he is in fact violating 

them by his more limited boycott and his trip to Israel. As such, Jordahl’s unique 

boycott—which he created by himself and whose contours seemingly match no others—

cannot fall within subsection (a) either. Nor has any State official ever told Jordahl that 

his boycott falls within the scope of the Act. Dep. 131:1-133:5. 

* * * * * 

For all of these reasons, neither Jordahl nor his company falls within the scope of 

the Act. Plaintiffs accordingly lack standing to challenge the Act, and will not suffer any 

irreparable harm absent injunctive relief regarding the Act.6

 

5

 Jordahl thought his boycott might align with “[s]ome of the protestant denominations,” 

but “forgot who they are exactly.” Dep. 56:1-6. 

6

 Jordahl cannot rely on a nascent “chill” relating to his corporation promoting his 

personal boycott. See Jordahl Decl. ¶ 27. Any such claim would be unripe and Jordahl 

would lack standing as no one is aware of any enforcement actions ever filed over a 

certification under the Act, leaving any such claim contingent on future counterfactual 

events. See, e.g., Dep. 131:1-133:5; Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 

(2009) (“the threat must be actual and imminent, not conjectural or hypothetical”); see 

also Lopez v. Candaele, 630 F.3d 775, 789–90 (9th Cir. 2010) (“Mere ‘[a]llegations of a 

subjective ‘chill’ are not an adequate substitute for a claim of specific present objective 

harm or a threat of specific future harm.’”); Texas v. United States, 523 U.S. 296, 300 

(1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that 

may not occur as anticipated, or indeed may not occur at all.’”). Moreover, such “chill” 

is inherent in the nature of all proscriptive statutes—a statute criminalizing cocaine might 

chill speech advocating for cocaine legalization out of fear the government might 

investigate the speaker, but that does not mean the statute violates the First Amendment. 

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E. If The Court Believes That The Act May Apply To Plaintiffs, It Should 

Abstain Under Pullman Or Certify That Question Of State Law 

If the Court thinks that the Act might reach Plaintiffs’ conduct or speech, it should 

either abstain under Pullman or certify the question of the scope of the Act to the Arizona 

Supreme Court. A stay based on Pullman abstention is appropriate where a state law is 

challenged on federal constitutional grounds, sensitive issues are raised, and a “definitive 

ruling in the state courts on the state law questions” would either render the federal 

constitutional question moot, or narrow the contours of the federal litigation. San Remo 

Hotel v. City and Cty. of S.F., 145 F.3d 1095, 1104 (9th Cir. 1988). Pullman abstention 

serves the principles of federalism and comity through “avoiding unseemly conflict 

between two sovereignties, the unnecessary impairment of state functions, and the 

premature determination of constitutional questions.” C-Y Dev. Co. v. City of Redlands, 

703 F.2d 377 (9th Cir. 1983) . Pullman abstention is particularly appropriate where the 

federal constitutional challenge is against a state statute and the meaning of the statute is 

unclear. Harris Cty. Comm’rs Court v. Moore, 420 U.S. 77, 84 (1975). 

Here, the elements of Pullman abstention are met. See Porter v. Jones, 319 F.3d 

483, 492 (9th Cir. 2003). First, it is self-evident that this case touches on a sensitive area 

of social policy. Arizona must have the ability to set rules for its own government 

contractors and ensure they are not undermining state policies or engaging in 

discrimination. Second, as noted in Part I, supra, if the Act does not cover Plaintiffs, 

then they lack standing and the Court need not reach their constitutional arguments. And

the proper resolution of the statutory construction is uncertain to the extent that this Court 

does not itself conclude the statute excludes Plaintiffs. 

Alternatively, if the Court declines Pullman abstention, then it should certify the 

legal question of the scope of the Act to the Arizona Supreme Court. Because the scope 

of the Act is a jurisdictional question here, it is an appropriate question for certification. 

See A.R.S. § 12-1861 et seq.; Equity Income Partners, LP v. Chicago Title Ins. Co., 828 

F.3d 1040, 1045 (9th Cir. 2016) (certifying question to Arizona Supreme Court). 

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II. PLAINTIFFS’ FIRST AMENDMENT CLAIMS FAIL 

Plaintiffs’ Complaint and motion fail to allege/prove any violation of Plaintiffs’ 

First Amendment rights. Plaintiffs accordingly are not likely to prevail on the merits and 

their Complaint should be dismissed. 

A. Plaintiffs’ Claims Fail Under Longshoremen And Briggs

Plaintiffs’ invocation of a smorgasbord of doctrines and case snippets might at 

first blush make the case seem complicated. But it actually is quite simple. Much of that 

apparent complexity results from Plaintiffs ignoring two directly-on-point precedents—

Longshoremen and Briggs—with which Plaintiffs’ claims are utterly irreconcilable. The 

former is outright controlling authority and is a unanimous decision of the Supreme 

Court, while the latter is highly persuasive authority that has become settled law and gone 

unchallenged for 33 years. Plaintiffs’ request for a preliminary injunction can be denied, 

and their Complaint dismissed, on the basis of these two cases alone. 

Longshoremen rejected a First Amendment claim strikingly similar to this case. In 

Longshoremen, a union “stop[ped] handling cargoes arriving from or destined for the 

Soviet Union ... to protest the Russian invasion of Afghanistan.” 456 U.S. at 214. The 

“‘[u]nion’s sole dispute [wa]s with the USSR over its invasion of Afghanistan,’” which 

the Court acknowledged was necessarily political in nature. Id. at 223-26. When the 

union faced a claim by companies transporting Russian goods that its actions were an 

unlawful secondary boycott, the union attempted to raise a First Amendment defense. To 

no avail. The Court had little difficulty unanimously rejecting the purported “right” to 

engage in a political boycott against the U.S.S.R.: the prohibition against the union’s 

boycott did “not infringe upon the First Amendment rights of the [union] and its 

members.” Id. at 226. Indeed, while there were “many ways in which a union and its 

individual members [could] express their opposition to Russian foreign policy,” their 

boycott was not among them. Id. at 226-27. Thus, as here, the parties were free to say 

anything they wanted about the occupation they opposed. Only their commercial conduct 

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was proscribed.7 Moreover, Longshoremen even reiterates that “secondary picketing” is 

not “protected activity under the First Amendment.” Id. at 226. And picketing is far 

more expressive than Plaintiffs’ selection of computers and printers. 

Plaintiffs’ claim is also foreclosed by Briggs. Plaintiffs inexplicably fail to 

address the fact that federal law has prohibited particular forms of boycotts against Israel 

since 1979 and that law was upheld against First Amendment challenges, most notably in 

Briggs. Indeed, the federal prohibition is enforceable both civilly and criminally, and 

extends to all Americans—not merely government contractors. And Plaintiffs’ counsel’s 

website specifically discusses that federal law and case law upholding it, but Plaintiffs’ 

motion is not so forthcoming.8

In Briggs, businesses sought to engage in actual speech in violation of the federal 

statute, in the form of answering questionnaires from boycotting states about “their 

relationship with Israel, Israeli firms, and other companies that do business with Israel.” 

Id. at 916-18. But even though the companies desired to speak truthful information, the 

 

7

 There are two potential differences between this case and Longshoremen, but neither 

makes any difference. Specifically, Plaintiffs (1) are an attorney and solo-practitioner 

firm rather than a union, and (2) \seek to boycott Israel rather than the Soviet Union, and 

their disagreement is with the occupation of Palestinian lands rather than Afghanistan. 

 As to the first, both unions and lawyers possess full First Amendment rights in this 

context and both of them are subject to extensive regulation of their conduct. Plaintiffs 

cannot lay claim to any special First Amendment solicitude for attorneys or particular 

First Amendment antipathy towards unions that could justify a different outcome. 

 The second distinction actually hurts Plaintiffs. The Longshoremen union at least 

sought to boycott an avowed enemy of the United States, thus complementing U.S. 

foreign policy. Similarly, the United States unequivocally condemned the Soviet 

Invasion of Afghanistan, going so far as to boycott the 1980 Moscow Olympics itself. 

See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 551-

52 (1987) (Brennan, J., dissenting). By contrast, Plaintiffs’ seek to direct their economic 

coercion against one of the United States’s closest allies, thereby directly undermining 

the foreign policy of the United States. Supra at 3-4. Plaintiffs’ claim thus brings 

additional governmental interests to bear in support of restricting Plaintiffs’ boycott and 

makes Plaintiffs’ claim even weaker here than in Longshoremen. See infra Part II.D 

(discussing State interests). 

8

 See ACLU, How the Israel Anti-Boycott Act Threatens First Amendment Rights (July 

26, 2017), https://www.aclu.org/blog/free-speech/how-israel-anti-boycott-act-threatensfirst-amendment-rights (section 6, “Why doesn’t the ACLU challenge the original law?”). 

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Seventh Circuit concluded that the statute and regulations were constitutional.9 

Briggs has effectively become the authoritative and final word on the 

constitutionality of anti-Israel boycott prohibitions. Since Briggs was decided in 1984, 

no one has challenged the federal statute since—even though virtually every First 

Amendment argument that Plaintiffs raise now would apply at least equally (if not more 

so) to the federal statute. The decades of consensus following Briggs regarding the 

constitutionality of the federal statute/regulations belies Plaintiffs’ present contention (at 

11, 15 n.8) that there are “glaring First Amendment concerns” and “manifest 

unconstitutional[ity]” with any statute prohibiting boycotts of Israel.10 And the State here 

merely seeks to deny subsidies to those engaged in boycotts that the State deems 

discriminatory and contrary to federal policy. See infra Sections II.D, II.E. 

Longshoremen and Briggs thus conclusively foreclose Plaintiffs’ First Amendment 

claims, eliminating any prospect of Plaintiffs prevailing on the merits. These cases 

themselves provide a sufficient basis for denying a preliminary injunction and dismissing. 

B. The Act Neither Prohibits Nor Compels Any Actual Speech 

Although Plaintiffs repeatedly use the term “First Amendment” generically, it is 

useful to focus on the actual constitutional guarantee at issue here, “freedom of speech.” 

U.S. Const. amend. I (emphasis added). Plaintiffs do not raise any Establishment, Free 

Exercise, Freedom of the Press, Peaceable Assembly or Petition Clause arguments; only 

the Speech Clause. That distinction is important because the Speech Clause 

unsurprisingly deals with speech. And, as discussed above, no actual speech is 

prohibited or mandated here. See supra at 11-12. 

 

9

 Two challenges were consolidated before the Seventh Circuit, which squarely upheld 

the statute/regulations. That decision affirmed both Briggs & Stratton Corp. v. Baldrige, 539 F. Supp. 1307 (E.D. Wis. 1982), and Trane Co. v. Baldrige, 552 F. Supp. 1378 

(W.D. Wis. 1983), and adopted the opinion of the former. Briggs, 728 F.2d at 916. 

10 As is the case here, Briggs did not involve any prohibition on speech regarding the 

actual political issues involved: “The appellants [we]re free to communicate their views 

about the relative merits of the Arabs’ political decisions”; they merely could not engage 

in particular conduct, including “furnish[ing] information about businesses relationships 

with boycotted countries or blacklisted persons in violation of the Act.” Id. at 917. 

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It is therefore useful to note what Plaintiffs can do notwithstanding the Act: 

Plaintiffs may, for example: 

 Criticize any and all policies of the government of Israel with which Plaintiffs 

disagree, as softly or as loudly and as politely or profanely as they desire. 

 Criticize the policies of the United States government vis-à-vis Israel, and call 

for a change in those policies. 

 Develop and publish official positions regarding what U.S. or Israeli 

governmental policy should be. 

 Support vocally and/or through contributions the election of candidates for 

Congress that would align U.S. policy towards Israel more to Plaintiffs’ liking. 

 Advocate for candidates for the Israeli Knesset that will support changes to 

Israeli policy and criticize candidates supporting the status quo. 

 Criticize the Act, advocate for its repeal, and support candidates for state office 

pledging to do so. 

 Call for others to boycott Israel, and explain why boycotts are appropriate. 

 Explain as loudly as they wish that any business dealings Plaintiffs have with 

Israel or (in their view) those supporting the occupation of the West Bank, such 

as HP, are solely due to the Act and performed under their vigorous protest. 

 Maintain total silence regarding their positions on Israeli government policy 

and U.S. policy vis-à-vis Israel. 

In sum, Plaintiffs may say absolutely anything they desire about Israel. Or they 

may maintain complete and absolute silence regarding their beliefs about the policies of 

Israel. The Act does not infringe on Plaintiffs’ ability to say anything they wish or 

nothing at all. Instead, the Act only regulates commercial conduct. 

C. Plaintiffs’ Desired Commercial Conduct Is Not Protected 

Plaintiffs’ desired conduct here—i.e., engaging in coordinated economic coercion 

against Israel—does not remotely qualify as “inherently expressive” and therefore is not 

protected under the First Amendment. Conduct—particularly non-economic conduct— 

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that is “inherently expressive” sometimes falls within the ambit of the First Amendment 

and is protected because of its expressive components. But “[t]he Supreme Court has 

made clear that First Amendment protection does not apply to conduct that is not 

‘inherently expressive.’” Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014) (quoting 

FAIR, 547 U.S. at 66). Here, Plaintiffs’ desired (i) economic, (ii) minimally-expressive, 

and (iii) discriminatory conduct does not enjoy such protection. 

Plaintiffs tellingly ignore the Supreme Court’s seminal decision in Rumsfeld v. 

FAIR, in which virtually every sentence of the Supreme Court’s First Amendment 

reasoning cuts against Plaintiffs here. FAIR addressed the Solomon Amendment, which 

coerced law schools into engaging in conduct with which they disagreed—allowing the 

military equal access to their campuses for recruiting purposes—on pain of losing federal 

funds. 547 U.S. at 51-55. The law schools desired to exclude the military based on their 

political disagreement with then-U.S. policy regarding homosexuals in the military, but 

were unwilling to forego the federal funding. Id. at 51-52. The law schools therefore 

challenged the statute on First Amendment grounds, raising arguments against the 

Solomon Amendment that are strikingly similar to those at issue here. And in resolving 

those arguments, the Supreme Court took pains to explain how the First Amendment 

protects—and does not protect—conduct that is allegedly expressive, as well as what 

allegedly “compelled speech” is prohibited. In doing so, the Supreme Court had little 

difficulty dismantling all of the law schools’ arguments unanimously, concluding that 

Congress could even have imposed the requirements as a direct mandate, rather than as a 

condition of receiving federal subsidies. Id. at 58-70. 

 Plaintiffs’ claims here cannot be reconciled with FAIR in at least four ways. 

First, the Court made clear that no actual compelled speech was at issue: “The Solomon 

Amendment neither limits what law schools may say nor requires them to say anything. 

Law schools remain[ed] free ... to express whatever views they may have,” and 

“remained free to dissociate [themselves] from those views” with which they disagree. 

Id. at 60, 65. There was “nothing ... approaching a Government-mandated pledge or 

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motto[.]” Id. at 62. Instead, “the Solomon Amendment regulate[d] conduct, not speech. 

It affect[ed] what law schools must do—afford equal access to military recruiters—not 

what they may or may not say.” Id. at 60. So too here. The Act does not require 

Plaintiffs to say anything; it only requires what they must do—i.e., not boycott Israel. 

Second, the Court made clear that incidental burdens on speech arising from 

regulations of conduct do not implicate the First Amendment: “Congress, for example, 

can prohibit employers from discriminating in hiring on the basis of race. The fact that 

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

means that the law should be analyzed as one regulating the employer’s speech rather 

than conduct.” Id. at 62. Here, the State has the power to regulate economic conduct 

within the State as commerce—including by banning conduct that it has concluded 

constitutes national origin discrimination. See supra at 5. As in FAIR, any incidental 

burdens on Plaintiffs’ speech resulting from that regulation of economic conduct do not 

implicate the First Amendment. 

Third, the Court rejected the law schools’ freedom of association claim that the 

“law schools’ ability to express their message that discrimination on the basis of sexual 

orientation is wrong is significantly affected by the presence of military recruiters on 

campus and the schools’ obligation to assist them.” Id. at 68. The Court disagreed: 

“Students and faculty [were] free to associate to voice their disapproval of the military’s 

message; nothing about the statute affects the composition of the group by making group 

membership less desirable.” Id. at 69-70. So too here. Plaintiffs are free to associate 

with anyone they want to “voice their disapproval” of Israel’s policies. What Plaintiffs 

may not do is engage in particular economic conduct. 

Fourth, as to conduct, the Court made clear that “First Amendment protection 

[extends] only to conduct that is inherently expressive.” Id. at 66. Excluding the military 

from campus did not qualify: “An observer who sees military recruiters interviewing 

away from the law school has no way of knowing whether the law school is expressing 

its disapproval of the military, all the law school’s interview rooms are full, or the 

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military recruiters decided for reasons of their own[.]” Id. Instead, “[t]he expressive 

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

that accompanies it.” Id. And, “[i]f combining speech and conduct were enough to 

create expressive conduct, a regulated party could always transform conduct into ‘speech’ 

simply by talking about it.” Id. The Court thus held that the law schools’ conduct was 

not expressive conduct enjoying any First Amendment protection. 

The same result should obtain here. Nothing about Plaintiffs’ desired conduct is 

inherently—or even particularly—expressive. Suppose Plaintiffs elect to buy an Apple 

iPad instead of an HP tablet—and say nothing about it. A reasonable observer would 

very likely suspect that Plaintiffs prefer Apple’s ease of use, app ecosystem or other 

features. Just about the last thing any observer is likely to think is: “You have an iPad; 

that must be because you oppose the policies of the government of Israel.” Nor are there 

likely to be many observers of Jordahl’s companies’ purchases at all—Jordahl has 

admitted that no client ever sees his office. Dep. 79-80. 

Similarly, if clients see an HP printer on Jordahl’s desk, they are likely to suspect 

that the printer’s purchase was made on the basis of price, features, or warranty. But they 

are hardly likely to think: “Jordahl has an HP printer; he must be an ardent supporter of 

Israel and its policies in Palestine.” And they certainly are unlikely to equate selection of 

a Lexmark printer instead to burning a U.S. flag, where the expressive conduct is 

“‘overwhelmingly apparent.’” FAIR, 547 U.S. at 66 (citation omitted). 

Only by talking about why Plaintiffs purchased an iPad or an HP printer would 

any observer discern any connection between that purchasing decision and Israeli 

governmental policies. Indeed, Plaintiffs have outright admitted as much. Dep. 100:3-

13; see also Ensign Decl. B (State’s notice of errata). And so, just as in FAIR, the 

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

with speech explaining it.” 547 U.S. at 66. And “[t]he fact that such explanatory speech 

is necessary is strong evidence that the conduct at issue here is not so inherently 

expressive that it warrants protection[.]” Id.

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* * * * * 

The upshot is that, as in FAIR, Plaintiffs here “ha[ve] attempted to stretch a 

number of First Amendment doctrines well beyond the sort of activities these doctrines 

protect.” Id. at 70. As in FAIR, Plaintiffs’ conduct does not enjoy any protection under 

the First Amendment, whether as speech, association, or expressive conduct.11 

D. The State Could Preclude Boycotts Of Israel By Public Businesses 

Through Direct Regulation 

Even assuming that Plaintiffs’ desired conduct had any First Amendment value, 

the State has multiple interests present that sustain the Act against any level of scrutiny 

that might apply. Here, there are at least two relevant government interests that are 

sufficient to sustain the Act: (1) the State’s power to regulate commerce and general 

police power and (2) the State’s interest in prohibiting discrimination. 

1. State Regulation of Commerce/General Police Power

It is “beyond dispute” that even those engaged in inherently expressive activities, 

such as publishing newspapers, may still be subject “to generally applicable economic 

regulations[.]” Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 

575, 581 (1983). Newspapers can thus be subjected to antitrust laws, labor laws, and 

investigatory subpoenas even though such laws might incidentally burden expression. Id.

(collecting cases). 

 

11 Indeed, Plaintiffs’ conduct here is even less worthy of First Amendment protection for 

two reasons. First, Plaintiffs’ desired conduct ultimately is designed not to persuade, but 

to coerce Israel into acquiescing to policies more to Plaintiffs’ liking. It is “even clearer 

that conduct designed not to communicate but to coerce merits still less consideration 

under the First Amendment.” Longshoremen, 456 U.S. at 226. 

 Second, the Act addresses purely economic conduct of a business engaged in commerce 

with the general public. It does not affect what Jordahl may do (or say) in his personal 

capacity. In contrast, FAIR arose in the academic context, where the law schools could 

lay claim to academic freedom, which has a robust tradition of First Amendment 

protection. See, e.g., Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 

(1967) (“[S]afeguarding academic freedom, which is of transcendent value ... [is] a 

special concern of the First Amendment[.]”). 

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Here the State has properly acted to regulate commercial activity to align 

commerce in the State with the State’s policy objectives and values. See, e.g., Barnes v. 

Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (“The traditional police power of the States 

is defined as the authority to provide for the public health, safety, and morals” and is a 

proper “basis for legislation.”). Israel is one of the precious few democracies in the 

Middle East and an ally of the United States. See 19 U.S.C. § 4452. The State has 

reasonably acted to prevent commerce within the state from being used as an economic 

weapon against Israel. That is particularly true as the effect—and often goal—of BDS 

boycotts is to strengthen the hand of the Palestinian Authority (“PA”) at the expense of 

Israel. The PA is far less democratic (at best)—notably its President has stayed in power 

despite his term ending over 9 years ago. Ensign Decl. Ex. E. And the PA is a coalition 

government between the (1) Palestinian Liberation Organization, which pays cash 

stipends to the families of terrorists, id. Ex. F, and (2) Hamas, which is on the State 

Department’s list of terrorist organizations, id. Ex. G. Id. Ex. H. The State has 

compelling interests in avoiding commerce in the State and State funds being used to 

support such activities. 

 “[T]he First Amendment does not prevent restrictions directed at commerce or 

conduct from imposing incidental burdens on speech.” Airbnb, Inc. v. City & County of 

San Francisco, 217 F. Supp. 3d 1066, 1076 (N.D. Cal. 2016) (quoting Sorrell v. IMS 

Health Inc., 564 U.S. 552, 567 (2011)). And that is precisely what the Act does here. 

2. State Interest In Prohibiting Discrimination

Even if Plaintiffs’ desired conduct was entitled to any First Amendment 

consideration at all, that interest is dramatically outweighed by the State’s interests. Here 

the statute expressly addresses national origin discrimination, with the legislature 

expressly finding that “[c]ompanies that refuse to deal with United States trade partners 

such as Israel, or entities that do business with or in such countries, make discriminatory 

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decisions on the basis of national origin[.]”12 This prohibition on secondary 

discrimination (i.e., boycotting companies that do business with Israel/Israelis) is hardly 

unique to the Act, and in fact is a feature of federal civil rights law. See, e.g., Holcomb v. 

Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). 

Indeed, even if strict scrutiny somehow applied here, the State’s compelling 

interests in combatting invidious, status-based discrimination in the sale of goods is more 

than sufficient to sustain the Act. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 623 

(1984). This goal is further “unrelated to the suppression of expression [and] plainly 

serves compelling state interests of the highest order.” Id. at 624. This antidiscrimination statute thus “does not distinguish between prohibited and permitted 

activity on the basis of viewpoint[.]” Id. at 623.13 The State’s compelling interest in 

prohibiting invidious, status-based discrimination thus outweighs whatever (if any) First 

Amendment interests Plaintiffs have here.14

 

12 See 2016 Ariz. Legis. Serv. Ch. 46; see also A.R.S. 35-393(1)(b) (prohibiting actions 

taken “[i]n a manner that discriminates on the basis of nationality [or] national origin”). 

13 Notably, the Act’s prohibition on particular conduct applies regardless of the 

viewpoint of the regulated companies. For example, the Act’s prohibition applies equally 

to (1) those with political disagreements with Israel, (2) those who are simply and 

outright Anti-Semitic, and (3) those that, while privately supporting Israel, believe a 

boycott of Israel will curry favor with their customers. See Bd. of Directors of Rotary 

Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (antidiscrimination laws 

“make[] no distinctions on the basis of the organization’s viewpoint.’”); Wisconsin v. 

Mitchell, 508 U.S. 476, 487 (1993) (“[F]ederal and state antidiscrimination laws” are 

“permissible content-neutral regulation[s] of conduct.” (emphasis added)).

 In Briggs, the plaintiff also sought to engage in conduct prohibited by the federal antiIsrael boycott statute not because he desired to boycott Israel—with whom he had no 

expressed political disagreement—but instead because he desired to engage in commerce 

with Arab states that were boycotting Israel. See 728 F.2d at 917-18 (“[A]ppellants do 

not seek to answer the questionnaire in order to ... enforce a trade boycott with Israel.”). 

But, as here, the statute applied regardless of Briggs’s viewpoint, and was constitutional. 

14 The Act is also supported by the State’s interest in ensuring that public funds are spent 

in a manner consistent with the public policy objectives of the State. See, e.g., Rust v. 

Sullivan, 500 U.S. 173, 192-93 (1991); see also infra Section II.E. In addition, the State 

has an interest in aligning its expenditures and commerce within the State with federal 

foreign policy. See Faculty Senate of Florida Int’l Univ. v. Winn, 616 F.3d 1206 (11th 

Cir. 2010) (holding that state may prohibit expenditure of public monies on academic 

travel to countries listed by U.S. State Department as state sponsors of terrorism). 

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3. O’Brien

Even if Plaintiffs’ desired conduct were inherently expressive and protected under 

United States v. O’Brien, 391 U.S. 367 (1968), the Act would still be constitutional. As 

the Court explained in FAIR, “‘an incidental burden on speech is no greater than is 

essential, and therefore permissible under O’Brien, so long as the neutral regulation 

promotes a substantial government interest that would be achieved less effectively absent 

the regulation.’” 547 U.S. at 67 (rejecting plaintiffs’ arguments under the O’Brien 

standard in the alternative) (citation omitted). That is just the case here. Absent the Act’s 

prohibitions, public monies will almost certainly be allocated to companies engaged in 

boycotts of Israel, thereby subsidizing those boycotts.15

Moreover, the Act is “within the constitutional power” of the State, “furthers ... 

important ... governmental interest[s]” identified above, and is “unrelated to the 

suppression of free expression.” O’Brien, 391 U.S. at 377.16

E. Even If Plaintiffs Have A Right To Boycott Israel, The State Need Not 

Subsidize Plaintiffs’ Boycotts With Expenditures Of Public Monies 

 As explained above, the Act would be constitutional even if it applied to everyone 

as a direct, criminal prohibition of conduct—much as the federal ban does, as that ban 

has repeatedly been upheld against First Amendment challenge. See supra at 17. That 

alone is sufficient to sustain the Act against any “unconstitutional condition” argument.17

But the Act is not nearly so coercive. Instead, it merely affects those who may 

obtain public monies from the State and its subdivisions through government contracts. 

The Act thus merely denies a subsidy to those who wish to engage in conduct proscribed 

 

15 For similar reasons, the Act is narrowly tailored. See Ward v. Rock Against Racism, 

491 U.S. 781, 783 (1989) (Statute is narrowly tailored if “the means chosen are not 

substantially broader than necessary to achieve that interest.”). Notably, Plaintiffs do not 

even argue that narrow tailoring is required, however. 

16 The Act would survive strict scrutiny given the compelling governmental interests 

identified above, although Plaintiffs have not even argued that such scrutiny applies. 

Indeed, it is not clear what standard of review that Plaintiffs believe should apply here. 

17 “It is clear that a funding condition cannot be unconstitutional if it could be 

constitutionally imposed directly.” FAIR, 547 U.S. at 59-60. 

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by the Act. They are still free to engage in boycotts of Israel; they just cannot demand 

financial assistance from the State in carrying out those boycotts. 

One of Plaintiffs’ own cases ably summarizes this general rule: “[I]f a party 

objects to a condition on the receipt of [government] funding, its recourse is to decline 

the funds. This remains true when the objection is that a condition may affect the 

recipient’s exercise of its First Amendment rights.” Open Society, 133 S. Ct. at 2328 

(cited at 14, 15). Thus, “a legislature’s decision not to subsidize the exercise of a 

fundamental right does not infringe the right.” Regan v. Taxation With Representation of 

Wash., 461 U.S. 540, 549 (1983). 

Regan is particularly instructive. It is undisputed that citizens and organizations 

have a First Amendment right to lobby the government. Congress, however, chose to 

give non-profit organizations that engage in lobbying activities (501(c)(4) organizations) 

less favorable tax treatment than those that do not (501(c)(3) organizations). See id. at 

543-44. That tax differential was challenged as placing an “unconstitutional condition” 

on exercising the right to lobby. Id. at 545. Unsuccessfully. The Court unanimously 

explained that “Congress has merely refused to pay for the lobbying out of public 

monies. This Court has never held that the Court must grant a benefit ... to a person who 

wishes to exercise a constitutional right.” Id. The Court “again reject[ed] the ‘notion that 

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

State.’” Id. at 546 (citation omitted); see also Open Society, 133 S. Ct. at 2328-29 

(discussing holding of Regan). The Court further explained that the plaintiff organization 

could “obtain [the more favorable tax treatment] for its non-lobbying activity by 

returning to the dual structure it used in the past, with a § 501(c)(3) organization for nonlobbying activities and a § 501(c)(4) organization for lobbying.” Regan, 461 U.S. at 544. 

The same result should obtain here. The State’s decision not to subsidize 

Plaintiffs’ boycott by providing public funds to Plaintiffs “has not infringed any First 

Amendment rights or regulated any First Amendment activity.” Id. at 546. And to the 

extent that Jordahl would like to engage in his boycott outside of his contract, he may do 

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so either in his personal capacity or by setting up a separate P.C. that would provide legal 

services to non-governmental entities. See also supra at 12. 

Regan is hardly an outlier. Cases where governments have constitutionally 

declined to fund activities they could not prohibit outright are numerous—often with 

Plaintiffs’ counsel filing amicus briefs in support of the government.18 In particular, 

governments may condition public monies on acceptance of non-discrimination policies. 

Thus, Congress could require a multi-state entity to refrain from discriminating against 

disabled individuals and waive sovereign immunity regarding discrimination claims as a 

condition of receiving funds. See Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 

1161, 1170 (D.C. Cir. 2004); see also Grove City Coll. v. Bell, 465 U.S. 555, 575 (1984) 

(Congress could require universities to provide equal treatment to women as a condition 

of federal funds). There is no reason why the State cannot constitutionally condition 

receipt of public funds through state contracts on non-discrimination against Israel. 

F. Plaintiffs’ Case Law Is Inapposite 

Rather than addressing the case law directly on point discussed above, Plaintiffs’ 

motion resorts to scattershot citation of a litany of case law addressing a broad range of 

inapposite First Amendment concepts. Plaintiffs’ reliance on that case law is unavailing. 

1. Claiborne Hardware

Plaintiffs’ heavy reliance on NAACP v. Claiborne Hardware Co., 458 U.S. 886 

(1982), is sorely misplaced. Claiborne is inapposite for four reasons. 

 

18 For example, while the State of Washington could not ban the study of theology, it 

could constitutionally deny scholarships to students who were theology majors. See 

Locke v. Davey, 540 U.S. 712, 720-21 (2004) (“The State has merely chosen not to fund a 

distinct category of instruction.”). Similarly, organizations could lawfully exclude 

individuals refusing to sign a statement of faith as members, but those groups “enjoy[ed] 

no constitutional right to state subvention [i.e., subsidy] of its selectivity.” Christian 

Legal Soc’y v. Martinez, 561 U.S. 661, 669 (2010). See also National Endowment for the 

Arts v. Finley, 524 U.S. 569, 587-88 (1998) (“[T]he Government may allocate 

competitive funding according to criteria that would be impermissible were direct 

regulation of speech or a criminal penalty at stake”). 

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

commercial boycott by businesses. Consumers’ personal choices about the companies to 

buy from implicate expression far more readily than business transactions. And the 

governmental interest in regulating commerce is more pronounced with respect to 

commercial purchasing decisions by businesses. Indeed, Claiborne “reaffirmed the 

government’s ‘power to regulate [such] [i.e., boycott] economic activity.’” FTC v. 

Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 426 (1990) (quoting Claiborne, 458 

U.S. at 912-13) (first alteration in original); see also Claiborne, 458 U.S. at 912 (“This 

Court has recognized the strong governmental interest in certain forms of economic 

regulation, even though such regulation may have an incidental effect on rights of speech 

and association”). 

Second, Claiborne’s central holding invalidated Mississippi’s attempt to impose 

liability on the NAACP purely for speech. The Court thus explained that Mississippi 

could “not award compensation for the consequences of nonviolent, protected activity,” 

and “[t]he use of speeches, marches, and threats of social ostracism cannot be the basis 

for a damages award.” 458 U.S. at 918, 933. There “[t]he liability of the NAACP derived 

solely from the liability of Charles Evers,” and the state pointed only to “Evers’ speeches, 

... as justification for the ... damages award.” Id. at 926-27, 929. In stark contrast, the 

Act does not impose any liability on the basis of pure speech; only conduct. 

Third, the boycott at issue in Claiborne “sought only the equal respect and equal 

treatment to which they were constitutionally entitled.” FTC, 493 U.S. at 426. Indeed, 

“[e]quality and freedom are preconditions of the free market, and not commodities to be 

haggled over within it.” Id. BDS boycotts, however, do not seek to vindicate anyone’s 

constitutional rights. Instead, they are both (1) directly contrary to federal law, supra 

at 3-4,19 rather than complementing federal civil rights statutes, and (2) actually 

proliferate national original discrimination themselves. 

 

19 Plaintiffs also do not address the obvious consequences of accepting their arguments. 

If Plaintiffs have a First Amendment right not to do business with Israel, why would they 

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Fourth, Claiborne was notably insufficient to provide First Amendment protection 

for any of the boycotts in FAIR, Longshoremen, FTC, or Briggs—all of which were 

decided after Claiborne. In the 35 years since Claiborne has been decided, courts simply 

have not read Claiborne anywhere near as broadly as Plaintiffs. 

2. Baird

Plaintiffs’ reliance (at 14) on Baird v. State Bar of Arizona, 401 U.S. 1 (1971) for 

the proposition that that Act unconstitutionally “inqui[res] into protected political beliefs 

and associations,” is similarly misplaced. In Baird, the Supreme Court prohibited the 

Arizona Bar from inquiring into whether a prospective member “had ever been a member 

of the Communist party” or a similar organization. Id. at 5, 7-8. 

Here, however, the Act and its implementing certification requirement do not 

actually inquire into Plaintiffs’ actual beliefs and associations at all. Instead, the Act’s 

certification requirement only asks whether Plaintiffs are engaged in (or will engage in) 

certain conduct—not beliefs or associations. See Jordahl Decl. Ex. 1. Parties may 

believe whatever they wish under the Act: they may (unlike Plaintiffs) even be virulent 

Anti-Semites, Holocaust deniers, or Blood Libel believers and still obtain contracts with 

the State and its subdivisions. They simply may not act in one particular fashion: 

engaging in prohibited boycotts of Israel. Plaintiffs similarly may belong to any 

organization they wish as long as they (but not necessarily the organization) are not 

engaged in prohibited boycotts of Israel. 

3. Pickering

Plaintiffs rely heavily (at 9-12, 14-15) on several cases applying Pickering v. Bd. 

of Ed., 391 U.S. 563 (1968). That reliance is misplaced for three reasons. 

 also not have a right to do business with countries like North Korea, Iran, and Sudan? 

Certainly doing business with such countries would have far more obvious expressive 

value than buying a Canon printer instead of an HP printer. If there is any way to accept 

Plaintiffs’ arguments without upending U.S. sanctions law, Plaintiffs certainly do not 

provide it. 

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First, the Pickering line of cases recognizes that governmental employees and 

contractors have more limited First Amendment rights than members of the general 

public. See, e.g., City of San Diego v. Roe, 543 U.S. 77, 80 (2004). Because the Act 

would be constitutional even as a direct regulation of all residents in the State as 

explained above, Pickering cannot save Plaintiffs’ claim. 

Second, Pickering is only triggered by “spe[ech] on matters of public concern.” 

Id. at 80-84. As explained above, no actual speech is prohibited or compelled. And any 

conduct regulated is not inherently expressive so as to implicate the First Amendment. 

Thus, the prerequisite for applying Pickering is not satisfied here. 

Third, Pickering provides for a balancing test even where speech “on matters of 

public concern” is at issue. Id. at 82-83. Because of the powerful government interests 

supporting the Act, supra at 22-25, the Pickering balancing that here requires upholding 

the Act. 

4. Alliance For An Open Society

In Open Society, unlike here, the federal government “require[ed] [government 

fund] recipients to profess a specific belief” and “adopt—as their own—the 

Government’s view on an issue of public concern.” 133 S. Ct. at 2330. The Act, 

however, does not require anyone to adopt a specific belief or constrain what views they 

may express. It simply requires that recipients of taxpayer funds not engage in particular 

conduct. 

G. Plaintiffs’ Overbreadth Challenge Fails 

Plaintiffs’ facial challenge relies on overbreadth doctrine, which is “strong 

medicine,” applied “only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 

(1973). To apply the doctrine, “a statute’s overbreadth [must] be substantial, not only in 

an absolute sense, but also relative to the statute’s plainly legitimate sweep.” United 

States v. Williams, 553 U.S. 285, 292 (2008). 

To the extent that the Act applies to Plaintiffs at all, Plaintiffs are at the statute’s 

periphery. The core of the Act is directed at typical BDS boycotts. Those boycotts 

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extend to all goods from Israeli companies simply because they are Israeli—and thus are 

patent national origin discrimination that the State may constitutionally prohibit, supra 

at 23-25. The Act thus has “plainly legitimate sweep.” Similarly, even assuming the Act 

was unconstitutional with respect to Plaintiffs’ closely-held, professional corporation, it 

has wide legitimate sweep as applied to large corporations and companies—which 

Plaintiffs have not even challenged. Cf. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 

2751, 2775 (2014) (extending protections under RFRA to “for-profit closely held 

corporation[s]”). 

III. PLAINTIFFS’ ALLEGED INJURIES ARE INSUFFICIENT TO JUSTIFY 

INJUNCTIVE RELIEF 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” 

Winter, 555 U.S. at 24. Injunctions are not available “‘to restrain an act the injurious 

consequences of which are merely trifling.’” Weinberger v. Romero-Barcelo, 456 U.S. 

305, 311 (1982) (citation omitted). Here, Plaintiffs’ alleged harms are “merely trifling” 

and insufficient to justify an injunction. 

Jordahl P.C. has continued to perform under the contract with the Jail District and 

Jordahl has admitted he expects to be paid for such work. Dep. 167:21-169:8. No 

injunctive relief is necessary to allow Jordahl’s company to continue working and 

ultimately be paid. 

Jordahl’s declaration only identifies one company that his company would like to 

boycott, HP. Jordahl Decl. ¶24. And Jordahl’s company only identified a single 

potential purchase of HP products on the horizon, a computer. Dep. 48:1-11. But 

Jordahl admits that he has not performed the basic research to determine if an HP would 

be the best computer provider for his business. Id. The First Amendment does not 

relieve Jordahl from performing basic consumer research; nor are Plaintiffs entitled to the 

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extraordinary remedy of an injunction when it could easily be the case that Jordahl P.C. 

would select a Dell, Lenovo or Acer computer after performing that research.20

Because Plaintiffs’ motion and supporting declaration fails to set forth injuries 

rising above the “merely trifling” level, no preliminary injunction is appropriate here. 

Moreover, although Plaintiffs were fully aware of their First Amendment claim by 

October 14, 2016, Jordahl Decl. Ex. 2, they delayed filing suit until nearly 14 months 

later. That delay further warrants denial of injunctive relief. See Oakland Tribune, Inc. 

v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s long delay 

before seeking a preliminary injunction implies a lack of urgency and irreparable harm.”). 

IV. ANY INJUNCTIVE RELIEF SHOULD BE LIMITED TO PLAINTIFFS 

Even if any injunctive relief were appropriate, the statewide injunction sought by 

Plaintiffs is dramatically overbroad. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 

1280, 1297 (9th Cir. 1992) (“An overbroad injunction is an abuse of discretion.”). An 

injunction limited to Plaintiffs pending resolution of this action would provide him 

complete relief. Moreover, in the absence of class certification, a preliminary injunction 

may only properly address the harm to the named plaintiff. Takiguchi v. MRI Int'l, Inc.,

611 F. App’x 919, 920 (9th Cir. 2015). No broader relief is needed or warranted. 

That is particularly true as the balance of harms and public interest do not favor 

Plaintiffs’ request for a statewide injunction. Here Plaintiffs’ alleged harms are both 

minor and contrived. See supra Section III. And Congress and the State Legislature 

have already balanced the public interest, and determined that BDS boycotts are contrary 

to that interest. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 

 

20 Jordahl’s deposition also discussed other possible harms that were similarly trifling. 

For example, Jordahl admitted that while he would boycott Caterpillar, Inc., his company 

is not in the market for combines or similar products. Dep. 18:5-6; 50:3-4. Jordahl 

similarly said that he personally boycotts wine made in occupied territories, but admitted 

that his company has never purchased any wine from anywhere ever. Dep. 138:11-13; 

Ensign Decl. Ex. B (State’s notice of errata). 

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(2001) (“[A] court sitting in equity cannot ‘ignore the judgment of Congress, deliberately 

expressed in legislation.’” (citation omitted)). 

Moreover, if this Court concludes that any part of the Act unconstitutional, then it 

should provide the State a subsequent opportunity to brief severability before issuing any 

broad injunctive relief or final judgment. The Act contains an express severability 

provision that requires the Court to save as much of the statute as possible. See A.R.S. 

35-393.03; see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985). 

(severability is a question of state law). 

This Court accordingly should not issue any statewide injunction where a tailored 

injunction limited to him will provide complete relief to Plaintiffs. Califano, 442 U.S. at 

702 (Injunctive relief “should be no more burdensome to the defendant than necessary”). 

V. THE CLAIMS AGAINST THE ATTORNEY GENERAL MUST BE 

DISMISSED 

Plaintiffs’ claims against Defendant Brnovich also fail for multiple reasons. First, 

the Attorney General enjoys state sovereign immunity. Nor can Plaintiffs avail 

themselves of the exception of Ex parte Young, which only applies where officials are 

alleged to have acted in violation of federal law. See, e.g., Pennhurst State Sch. & Hosp. 

v. Halderman, 465 U.S. 89, 102-06 (1984). But the Attorney General is not alleged to 

have taken any action here, let alone one in violation of federal law. See Complaint ¶ 8. 

Second, and for similar reasons, Plaintiffs lack standing to assert a claim against 

the Attorney General, which would also be unripe. Absent any actual conduct by the 

Attorney General, there is no subject matter jurisdiction for a claim asserted against him. 

Third, even if jurisdiction were present, the absence of any actual action by the 

Attorney General vis-à-vis Plaintiffs prevents any finding of liability against him.21

 

21 The State is concurrently moving to intervene in this action to defend the 

constitutionality of the Act. This brief is filed on behalf of both Defendant Brnovich and 

Proposed Intervenor-Defendant the State of Arizona. 

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CONCLUSION 

For the foregoing reasons, Plaintiffs’ request for a preliminary injunction should 

be denied and Plaintiffs’ complaint dismissed.22

Respectfully submitted this 18th day of January, 2018. 

MARK BRNOVICH 

ATTORNEY GENERAL 

By: s/ Drew C. Ensign 

Drew C. Ensign (No. 25463) 

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

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

Evan G. Daniels (No. 030624) 

Keith J. Miller (No. 29885) 

Aaron M. Duell (No. 033450) 

Attorneys for Defendant Mark Brnovich in his 

official capacity as Attorney General and 

Proposed Intervenor-Defendant State of 

Arizona 

 

22 LRCiv 7.2(e) provides 17 pages each for a motion to dismiss and response to a motion 

for a preliminary injunction. This combined brief is filed with the 34 combined pages 

allowed for such briefs. 

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LOCAL RULE 12.1 CERTIFICATION 

Pursuant to Local Rule 12.1, I certify that before filing the instant motion 

attorneys for the State conferred with Plaintiffs’ counsel by telephone and informed them 

of the State’s intention to file this motion and the bases for it. Plaintiffs’ counsel 

indicated that Plaintiffs would not be amending their Complaint to attempt to cure the 

deficiencies identified by the State. 

 s/ Drew C. Ensign 

Attorney for Intervenor-Defendant State of Arizona 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 18th day of January, 2018, I caused the foregoing 

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

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

CM/ECF registrants: 

Kathleen E. Brody 

Darrell L. Hill 

ACLU Foundation of Arizona 

3707 North 7th Street, Suite 235 

Phoenix, AZ 85014 

Telephone: (602) 650-1854 

kbrody@acluaz.org 

dhill@acluaz.org 

Brian Hauss 

Vera Eidelman 

Ben Wizner 

Speech, Privacy & Technology Project 

125 Broad Street, 18th Floor 

New York, NY 10004 

Telephone: (212) 549-2500 

bhauss@aclu.org 

veidelman@aclu.org 

bwizner@aclu.org 

ACLU Foundation 

 s/ Drew C. Ensign 

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

Proposed Intervenor-Defendant State of Arizona 

Case 3:17-cv-08263-DJH Document 28 Filed 01/18/18 Page 42 of 46
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APPENDIX A 

STATES THAT HAVE ADOPTED PROHIBITIONS 

ON FORMS OF BOYCOTTS AGAINST ISRAEL

Alabama 

- SB 81, passed and signed into law in 2016 

- https://legiscan.com/AL/text/SB81/2016

Arizona 

- HB 2617, passed and signed into law in 2016 

- https://www.azleg.gov/legtext/52leg/2r/bills/hb2617p.pdf

Arkansas 

- SB 513 passed and signed into law in 2017 

- https://legiscan.com/AR/text/SB513/id/1551482

California 

- AB 2844, passed and signed into law in 2016 

- https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160

AB2844

Colorado 

- HB 16-1284 passed and signed into law in 2016 

- http://www.leg.state.co.us/clics/clics2016a/csl.nsf/fsbillcont3/FFEE6B72C4A

B699C87257F240063F4A6?open&file=1284_rer.pdf

Florida 

- SB 86 passed and signed into law in 2016 

- https://www.flsenate.gov/Session/Bill/2016/0086

Georgia 

- SB 327 passed and signed into law in 2016 

- http://www.legis.ga.gov/legislation/en-US/Display/20152016/SB/327

Illinois 

- SB 1761 passed and signed into law in 2015 

- http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=88&GA=9

9&DocTypeId=SB&DocNum=1761&GAID=13&LegID=&SpecSess=&Sessio

n= 

Indiana 

- HB 1378 passed and signed into law in 2016 

- https://iga.in.gov/legislative/2016/bills/house/1378#document-916c8474

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Iowa 

- HF 2331 passed and signed into law in 2016 

- https://www.legis.iowa.gov/legislation/BillBook?ga=86&ba=HF%202331

Kansas 

- HB 2409 passed and signed into law in 2017 

- http://www.kslegislature.org/li/b2017_18/measures/hb2409/

Maryland 

- Governor Hogan signed an executive order in 2017

- https://content.govdelivery.com/attachments/MDGOV/2017/10/23/file_attach

ments/900819/Executive%2BOrder%2B01.01.2017.25.pdf

Michigan 

- HB 5821 and HB 5822 were passed and signed into law in 2017

- https://trackbill.com/bill/mi-hb5821-state-financing-and-managementpurchasing-prohibition-of-contracting-with-certain-discriminatory-businessesthat-boycott-certain-entities-provide-for-amends-sec-261-of-1984-pa-431-mcl18-1261/1308784/

- https://trackbill.com/bill/mi-hb5822-state-financing-and-managementpurchasing-prohibition-of-contracting-with-certain-discriminatory-businessesprovide-for-amends-1984-pa-431-mcl-18-1101-18-1594-by-adding-sec-241ctie-bar-with-hb-582116/1308785/

Minnesota 

- HF 400 passed and signed into law in 2017 

- https://www.revisor.mn.gov/bills/bill.php?f=HF0400&y=2017&ssn=0&b=hou

se

Nevada 

- SB 26 passed and signed into law in 2017 

- https://www.leg.state.nv.us/Session/79th2017/Reports/history.cfm?BillName=

SB26

New Jersey 

- A 925 passed and signed into law in 2016

- http://www.njleg.state.nj.us/2016/Bills/A1000/925_I1.PDF

New York 

- Governor Cuomo signed an executive order in 2016 

- https://www.governor.ny.gov/news/no-157-directing-state-agencies-andauthorities-divest-public-funds-supporting-bds-campaign

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North Carolina 

- HB 161 passed and signed into law in 2017 

- https://ncleg.net/Sessions/2017/Bills/House/HTML/H161v0.html

Ohio 

- HB 476 passed and signed into law in 2016 

- https://www.legislature.ohio.gov/legislation/legislation-documents?id=GA131-

HB-476

Pennsylvania 

- HB 2107 passed and signed into law in 2016

- http://www.legis.state.pa.us/cfdocs/billInfo/BillInfo.cfm?syear=2015&sind=0

&body=H&type=B&bn=2107

Rhode Island 

- H 7736 passed and signed into law in 2016 

- http://webserver.rilin.state.ri.us/billtext16/housetext16/h7736.pdf

South Carolina 

- H 3583 passed and signed into law in 2015 

- http://www.scstatehouse.gov/sess121_2015-2016/prever/3583_20150319.htm

Texas 

- HB 89 passed and signed into law in 2017 

- http://www.legis.state.tx.us/tlodocs/85R/billtext/html/HB00089I.htm

Wisconsin 

- Governor Walker signed an executive order in 2017 

- https://walker.wi.gov/sites/default/files/executiveorders/EO%20%23261_0.pdf

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APPENDIX B 

PROPOSED FEDERAL LEGISLATION PROHIBITING BDS BOYCOTTS

SENATE 

 Israel Anti-Boycott Act: 

S.720 – (51 cosponsors) 

https://www.congress.gov/bill/115th-congress/senate-bill/720

HOUSE 

 Israel Anti-Boycott Act: 

HR 1697 – (269 cosponsors) 

https://www.congress.gov/bill/115th-congress/house-bill/1697/all-actions

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