Kathleen E. Brody, AZ Bar No. 026331 

Darrell L. Hill, AZ Bar No. 030424 

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 (pro hac vice application forthcoming) 

Vera Eidelman (pro hac vice application forthcoming) 

Ben Wizner (pro hac vice application forthcoming) 

ACLU Foundation, Speech, Privacy & Technology Project 

125 Broad Street, 18th Floor 

New York, NY 10004 

Telephone: (212) 549-2500 

bhauss@aclu.org 

veidelman@aclu.org 

bwizner@aclu.org

Attorneys for Plaintiffs 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, P.C., ) No. CV17-08263-PCT-BSB 

 ) 

 Plaintiffs, ) PLAINTIFFS’ MOTION FOR

v. ) PRELIMINARY 

 ) INJUNCTION WITH 

Mark Brnovich, Arizona Attorney General; Jim ) ACCOMPANYING

Driscoll, Coconino County Sheriff; Matt Ryan, ) DECLARATION AND

Coconino County Board of Supervisors Chair; ) MEMORANDUM OF LAW

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. )

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TABLE OF CONTENTS 

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

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION ...................................... 1

MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 1

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

STATEMENT OF FACTS .............................................................................................. 2

The Act ......................................................................................................................... 2

Mr. Jordahl’s Boycott Participation ............................................................................. 3

The Coconino County Jail District Contract ................................................................ 5

The Certification’s Effects on Plaintiffs’ Boycott Participation .................................. 6

ARGUMENT ................................................................................................................... 7

I. Plaintiffs Are Likely to Prevail on the Merits. ................................................... 7

A. The First Amendment Protects the Right to Engage in Political Boycotts.

 8

B. HB 2617 Unconstitutionally Prohibits Government Contractors from 

Boycotting Israel. .......................................................................................... 9

C. HB 2617 Unconstitutionally Compels Speech About Political Beliefs 

and Associations. ......................................................................................... 14

D. HB 2617 Violates the First Amendment as Applied to Mr. Jordahl and 

His Firm. ...................................................................................................... 16

II. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction. ..................... 16

III. The Balance of Equities and Public Interest Tip Sharply in Plaintiffs’ 

Favor. ............................................................................................................ 16

CONCLUSION .............................................................................................................. 17

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TABLE OF AUTHORITIES 

Cases

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

 133 S. Ct. 2321 (2013) ....................................................................................... 14, 15, 16 

Allee v. Medrano, 416 U.S. 802 (1974) ....................................................................... 17 

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) .......................... 9 

Am. Beverage Ass’n v. City & Cty. of San Francisco,

 871 F.3d 884 (9th Cir. 2017) ......................................................................................... 16 

Ams. for Prosperity Found. v. Harris,

 182 F. Supp. 3d 1049 (C.D. Cal. 2016) .................................................................... 16 

Baird v. State Bar of Arizona, 401 U.S. 1 (1971) ............................................................. 14 

Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668 (1996) ............................................... 10, 15 

Carey v. Brown, 447 U.S. 455 (1980) ................................................................................. 9 

Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (201) ........................................ 10 

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................... 16 

FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1998) .................................... 9 

Henry v. First Nat’l Bank of Clarksdale, 595 F.2d 291 (5th Cir. 1979) ........................... 10 

Hobler v. Brueher, 325 F.3d 1145 (9th Cir. 2003) ............................................................ 15 

Hudson v. Craven, 403 F.3d 691 (9th Cir. 2005) .............................................................. 10 

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ......................................... 17 

Matal v. Tam, 137 S. Ct. 1744 (2017) .............................................................................. 13 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .............................................. 10 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ................................ 8, 9, 10, 11 

Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716 (9th Cir. 2017) ........................ 7 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 3 of 22
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O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) ................................ 15 

Pickering v. Bd. of Ed., 391 U.S. 563 (1968) .............................................................. 10, 11 

Police Dep’t of City of Chi. v. Mosley, 408 U.S. 92 (1972) .......................................... 14 

RAV v. City of St. Paul, 505 U.S. 377 (1992) ................................................................ 13 

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995) .............................................................. 12, 13 

Tucker v. Dep’t of Educ., 97 F.3d 1204 (9th Cir. 1996) ................................................... 12 

United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) .................... 10, 11, 12 

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ..................................... 7 

Other Authorities

Arizona News Release, H.R. Rep. (Feb. 4, 2016) ............................................................... 3 

Conf. Comm. Rep. Br. HB 2617, Ariz. 2016 Sess. ....................................................... 3, 12 

Statutes and Rules

50 U.S.C. § 4607 ................................................................................................................. 3 

A.R.S. § 35-393.01 ...................................................................................................... 1, 2, 6 

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PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Plaintiffs move this Court pursuant to Rule 65 of the Federal Rules of Civil 

Procedure for a preliminary injunction restraining Defendants from enforcing the 

certification requirement contained in House Bill 2617, A.R.S. § 35-393.01 (“HB 2617” 

or “the Act”), which compels government contractors to certify that they are not 

participating in boycotts of Israel. Alternatively, Plaintiffs request a preliminary 

injunction preventing Defendants from enforcing HB 2617’s certification requirement 

against them. This Motion is supported by the Complaint, the following Memorandum of 

Points and Authorities, and the accompanying exhibits. 

MEMORANDUM OF POINTS AND AUTHORITIES 

INTRODUCTION

 Last year, Arizona enacted House Bill 2617, which requires government contractors 

throughout the state to sign written certifications that they do not participate in boycotts of 

Israel, including boycotts of goods produced by Israeli settlements in the occupied 

Palestinian territories. Plaintiff Mikkel Jordahl participates in a political boycott of 

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

Palestinian territories. He is also the sole owner of a law firm, Plaintiff Mikkel (Mik) 

Jordahl, P.C. (“Firm”). Mr. Jordahl’s Firm has contracted with the Coconino County Jail 

District (“County”) to provide legal services to incarcerated individuals for the past twelve 

years.

 The County asked Mr. Jordahl to sign the certification on his Firm’s behalf last year. 

He did so under protest, and made clear his understanding that the certification does not 

apply to his personal consumer decisions. Because he signed the certification, however, 

Mr. Jordahl was chilled from exercising his First Amendment rights: he was careful not to 

let his personal boycott affect his Firm’s consumer purchases; he turned down 

opportunities for his Firm to support and affiliate with organizations that participate in 

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boycotts of Israel, such as Jewish Voice for Peace; and he refrained from speaking out 

vocally about his boycott participation for fear that it might cast suspicion on his Firm. 

Now, the Firm’s contract has come up for renewal, and the County has again asked Mr. 

Jordahl to sign the certification. He does not want to sign, but he fears that he will lose a 

substantial portion of his income if his Firm loses its contract with the County. 

HB 2617’s certification requirement forces a blatantly unconstitutional choice on 

government contractors like Mr. Jordahl and his Firm: Either sign a written statement 

disavowing participation in constitutionally protected boycotts of Israel, or forfeit the 

opportunity to work for the government. The requirement imposes sweeping restrictions 

on core political expression and association. It also compels speech on contractors’ 

beliefs, associations, and expression. A preliminary injunction is necessary to alleviate 

the ongoing and irreparable harm caused by the certification requirement’s violation of 

First Amendment rights. 

STATEMENT OF FACTS 

The Act 

Last year, Arizona enacted House Bill 2617. The Act, which went into effect on 

August 6, 2016, states in relevant part: “A public entity may not enter into a contract with 

a company to acquire or dispose of services, supplies, information technology or 

construction unless the contract includes a written certification that the company is not 

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

of Israel.” A.R.S. § 35-393.01(A).1

 The Act defines “Boycott” to mean:

[E]ngaging in a refusal to deal, terminating business activities or performing 

other actions that are intended to limit commercial relations with Israel or 

with persons or entities doing business in Israel or in territories controlled by 

1

 A separate provision of HB 2617 provides that “[a] public entity may not adopt a 

procurement, investment or other policy that has the effect of inducing or requiring a person 

or company to boycott Israel.” A.R.S. § 35-393.01(B). That provision is not at issue here. 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 6 of 22
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Israel, if those actions are taken either: (a) In compliance with or adherence 

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

States Code section 4607(c) applies; [or] (b) In a manner that discriminates 

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

a valid business reason. 

Id. § 35-393(1).2

The Act’s Committee Report states that “[t]here is no anticipated fiscal impact to 

the state General Fund associated with this legislation.” Conf. Comm. Rep. Br. HB 2617, 

Ariz. 2016 Sess., 1. Rather, as reflected in the Act’s legislative findings, HB 2617 purpose 

is to suppress the use of “[b]oycotts and related tactics” against Israel. In its press release 

announcing the Act’s introduction, the Arizona House of Representatives Republican 

Caucus explained that the Act will “target companies engaging in actions that are 

politically motivated.” Arizona News Release, H.R. Rep. (Feb. 4, 2016). One of the Act’s 

sponsors, Representative Paul Boyer, said, “I stand proudly and publicly with Israel against 

those who would seek to delegitimize her.” Id.

Mr. Jordahl’s Boycott Participation 

Mr. Jordahl comes from three generations of Lutheran ministers, including his 

father. Declaration of Mikkel Jordahl ¶ 5. Mr. Jordahl first became interested in the IsraeliPalestinian conflict in 1977, when he spent three months with his parents while they were 

living in the West Bank. Id. ¶ 6. Both Mr. Jordahl and his parents were profoundly affected 

by what they saw in the occupied Palestinian territories. Id. Upon his return to the United 

States, Mr. Jordahl established the Oberlin College chapter of the Palestine Human Rights 

Campaign. Id.

Mr. Jordahl raised his son Jewish. Id. ¶ 7. They took a trip together to Israel and 

Palestine in the spring of 2017, after his son’s Bar Mitzvah. Id. They were disheartened to 

2

 50 U.S.C. § 4607 is part of the Export Administration Act (“EAA”), which prohibits U.S. 

persons from complying with a foreign country’s request to boycott a country friendly to 

the United States. HB 2617 seems to reference the EAA in order to avoid the EAA’s 

preemption provision. Id. § 4607(c). 

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hear many people express the opinion that Israeli settlements in the occupied Palestinian 

territories would prevent an end to the occupation. Id. Many of the Palestinians they met 

expressed no hope that they would ever receive equal rights in the occupied territories. Id.

Mr. Jordahl has been moved by the Evangelical Lutheran Church in America’s 

(ELCA) Peace Not Walls campaign, which seeks to promote the “equal human dignity and 

rights for all people in the Holy Land,” as well as “an end to Israeli settlement building and 

the occupation of Palestinian land.” Id. ¶ 9.3

 The campaign calls on “individuals to invest 

in Palestinian products to build their economy and to utilize selective purchasing to avoid 

buying products” made in Israeli settlements in the occupied Palestinian territories. Id.4

Mr. Jordahl is a non-Jewish member of Jewish Voice for Peace. Jordahl Decl. ¶ 10. 

Jewish Voice for Peace describes itself as a national grassroots organization inspired by 

Jewish tradition to work “for a just and lasting peace according to principles of human 

rights, equality, and international law for all the people of Israel and Palestine.” Id.5

 Jewish 

Voice for Peace endorses the call from Palestinian civil society for Boycott, Divestment, 

and Sanctions campaigns to protest the Israeli government’s occupation of Palestinian 

territories. Id.

6

In conjunction with these calls for boycott, Mr. Jordahl personally boycotts 

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

Palestinian territories. Id. ¶ 11. Mr. Jordahl participates in this boycott to protest both the 

occupation and the settlements. Id.

3

 Evangelical Lutheran Church in America, Peace Not Walls, https://www.elca.org/OurWork/Publicly-Engaged-Church/Peace-Not-Walls (last visited Dec. 7, 2017). 

4 Id.

5

 Jewish Voice for Peace, About JVP, https://jewishvoiceforpeace.org/ (last visited Dec. 7, 

2017).

6

 Jewish Voice for Peace, JVP Supports the BDS Movement, https://jewishvoiceforpeace.

org/boycott-divestment-and-sanctions/jvp-supports-the-bds-movement/ (last visited Dec. 

7, 2017). 

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The Coconino County Jail District Contract 

For the past twelve years, Mr. Jordahl’s Firm has maintained a contract with the 

County. Id. ¶ 12. Under the contract, the Firm provides legal advice to incarcerated 

individuals regarding issues like conditions of confinement, civil rights, extradition, and 

habeas corpus. Id. The current contract between the Firm and County is for a multi-year 

period, with annual renewals. Id. ¶ 15. Under the contract, the Firm receives a monthly 

payment of $1,533, or more than $18,000 per year. Id.

The current contract began in the fall of 2016. Id. When the Firm and the County 

were entering into that agreement, an official from the County asked Mr. Jordahl to sign 

not only the standard paperwork, but also a new form entitled “Certification Pursuant to 

A.R.S. § 35-393.01.” Id. ¶ 16. The certification stated, “Pursuant to the requirements of 

A.R.S. § 35-393.01(A), the Independent Contractor hereby certifies that the Independent 

Contractor [and its subsidiaries, parent companies, or affiliates are] not currently engaged 

[nor shall engage] in a boycott of Israel.” See id., Exh. 1. 

Mr. Jordahl was surprised by and opposed to the requirement that he sign the 

certification. Id. ¶ 18. Fearing loss of the contract, however, Mr. Jordahl signed the 

certification under protest on October 14, 2016. Id. ¶¶ 18, 19. He sent the original signed 

certification to an official with the County. Id. ¶ 19. He also sent a copy to Rose Winkeler, 

Deputy County Attorney of Coconino County, along with a letter entitled “Re: Israel 

Boycott Addendum to Inmate Civil Rights Advising Contract.” Id.; see id., Exh. 2. Mr. 

Jordahl wrote that although he would comply with the certification while the law was in 

effect, he believed that it violated his constitutional rights. Id. ¶ 20. He further wrote to 

clarify his understanding that the certification applied to him in his capacity “as a soleproprietor contractor on behalf of [his] professional corporation and not in [his] personal 

capacity unrelated to any government contract.” Id. This apparently satisfied the County, 

and the contract commenced on November 10, 2016. Id. ¶ 22; see id., Exh. 3. 

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On November 14, 2017, Mr. Jordahl received a letter from the County regarding 

renewal of the 2016 contract. Id. ¶ 28. The letter, which was signed by Kathleen Levinson, 

the Administrative Manager of Coconino County Sheriff’s Office, asked Mr. Jordahl to 

sign and notarize the enclosed “agreement[] approved by [the County’s] Board of 

Directors.” Id.; see id., Exh. 4. The enclosed agreement stipulated to a one-year renewal of 

the 2016 contract between the Firm and the County; it did not change the contract’s scope 

or compensation. Id. ¶ 29. It also included another Certification Pursuant to A.R.S. § 35-

393.01, which was substantially unchanged from the certification Mr. Jordahl signed under 

protest in 2016. Id. ¶ 30; see id., Exh. 5. Although Mr. Jordahl remains committed to 

providing his services to the County, he has not signed and returned the 2017 agreement, 

because he objects to making the certification. Id. ¶ 31. 

The Certification’s Effects on Plaintiffs’ Boycott Participation 

Because of the certification, Mr. Jordahl has been careful to separate his personal 

boycott participation from the operation of his Firm, which currently does not participate 

in Mr. Jordahl’s boycott of consumer goods and services offered by businesses supporting 

Israel’s occupation of the Palestinian territories. Id. ¶ 25. Were it not for the Act’s 

certification requirement, Mr. Jordahl would extend his personal boycott participation to 

his Firm’s consumer choices. Id. ¶ 24. For example, Mr. Jordahl would refuse to purchase 

Hewlett Packard equipment for his Firm, based on Hewlett Packard’s provision of 

information technology services used by Israeli checkpoints throughout the West Bank. Id.

Mr. Jordahl has also been careful not to use his Firm to support or affiliate with 

entities participating in boycotts of Israel or Israeli settlements. Id. ¶ 25. Jewish Voice for 

Peace, which employs boycott, divestment, and sanctions tactics to put political pressure 

on Israel, has asked Mr. Jordahl’s Firm to contribute office support and financial 

contributions to its boycott activities. Id. Although he wishes to provide this support, Mr. 

Jordahl has rejected these requests in order to comply with the certification. Id. Were it not 

for the certification requirement, Mr. Jordahl’s Firm would provide support services and 

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financial contributions, as well as pro bono legal services, to Jewish Voice for Peace and 

other boycott participants. Id. ¶ 26. 

Finally, although Mr. Jordahl does not understand the certification to apply to his 

personal activities, he reasonably fears that vocal advocacy about his personal boycott 

participation would lead to suspicion about whether his Firm is complying with the 

certification. Id. ¶ 27. As a result, he has felt chilled from publicly promoting or discussing 

his personal boycott participation. Id.

ARGUMENT

 A preliminary injunction is necessary to remedy the irreparable injuries inflicted on 

Plaintiffs, as well as government contractors throughout Arizona, by HB 2617’s 

unconstitutional certification requirement. To obtain a preliminary injunction, the moving 

party must “establish (1) ‘that [it] is likely to succeed on the merits,’ (2) ‘that [it] is likely 

to suffer irreparable harm in the absence of preliminary relief,’ (3) ‘that the balance of 

equities tips in [its] favor,’ and (4) ‘that an injunction is in the public interest.’” Nationwide

Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 730 (9th Cir. 2017) (quoting Winter v.

Natural Resources Defense Council, 555 U.S. 7, 20 (2008)). Here, all four factors weigh 

decisively in Plaintiffs’ favor.

I. Plaintiffs Are Likely to Prevail on the Merits. 

 Plaintiffs are likely to succeed in demonstrating that HB 2617’s certification 

requirement violates the First Amendment. It is black letter law that the First Amendment 

rights to free association and free expression collectively encompass the right to participate 

in political boycotts. The state cannot condition government contracts on the forfeiture of 

this right. The certification requirement violates this principle in two respects. First, it 

restricts government contractors from engaging in core political expression, including both 

boycott participation and boycott-related speech, without any legitimate justification. 

Second, it compels speech regarding contractors’ political beliefs, associations, and 

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expression. Plaintiffs are likely to prevail on either of these theories, but they need prevail 

on only one for this Court to issue a preliminary injunction. 

A. The First Amendment Protects the Right to Engage in Political Boycotts. 

 Since the Supreme Court’s landmark decision in NAACP v. Claiborne Hardware 

Co., 458 U.S. 886 (1982), it has been clear that the First Amendment protects the right to 

engage in politically motivated boycotts. Claiborne concerned a boycott of white-owned 

businesses in Port Gibson, Mississippi. Id. at 889. The boycott, which was organized with 

the help of the NAACP in March and April of 1966, was meant to protest ongoing racial 

segregation and widespread racial inequality in the community. Id. Three years later, 

several merchants targeted by the boycott sued the boycotters in Mississippi state court, 

seeking to recover business losses caused by the boycott and enjoin future boycott activity. 

Id. The Mississippi Supreme Court upheld the trial court’s imposition of liability, 

concluding that “the entire boycott was unlawful” because the trial court had found that it 

was enforced through force, threats, and violence. See id. at 895. The state court summarily 

rejected the boycotters’ First Amendment defense. Id.

 The U.S. Supreme Court reversed, holding in relevant part that “the nonviolent 

elements of [the boycotters’] activities are entitled to the protection of the First 

Amendment.” Id. at 915; see also id. (“The Mississippi Supreme Court did not sustain the 

chancellor’s imposition of liability on a theory that state law prohibited a nonviolent, 

politically motivated boycott. The fact that such activity is constitutionally protected,

however, imposes a special obligation on this Court to examine critically the basis on which 

liability was imposed.” (emphasis added)). Although the Court acknowledged that “States 

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

prohibit peaceful political activity such as that found in the boycott in this case.” Id. at 913. 

To the contrary, the Court observed that such “expression on public issues has always 

rested on the highest rung of the hierarchy of First Amendment values.” Id. (quoting Carey

v. Brown, 447 U.S. 455, 467 (1980)). Accordingly, the Court held that both the boycott 

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itself and the associated “elements of speech, assembly, association, and petition” were 

entitled to First Amendment protection. Id. at 911, 915. Since Claiborne, the Court has 

repeatedly reaffirmed that the First Amendment protects the right to engage in political 

boycotts and related advocacy. See FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 

411, 428 (1998); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 

(1988).

 The principle laid down in Claiborne protects Mr. Jordahl’s boycott. Along with 

likeminded people throughout Arizona and the United States, Mr. Jordahl protests Israel’s 

occupation of the Palestinian territories by refusing to buy consumer goods and services 

offered by businesses supporting the occupation. Like the boycotters in Claiborne, Mr. 

Jordahl is not “motivated by any desire to lessen competition or to reap economic benefits,” 

nor does he “stand to profit financially from a lessening of competition in the boycotted 

market.” Allied Tube, 486 U.S. at 508. Rather, he is motivated by the aim of “vindicat[ing] 

rights of equality and freedom,” and by his belief that those rights are currently being 

denied to Palestinians. Claiborne, 458 U.S. at 914. Because the boycott in which Mr. 

Jordahl participates is “designed to force governmental and economic change,” it is 

“entitled to the protection of the First Amendment.” Id. at 914–15. 

B. HB 2617 Unconstitutionally Prohibits Government Contractors from 

Boycotting Israel. 

 HB 2617 violates the First Amendment by imposing a blanket, content and 

viewpoint discriminatory restriction on government contractors’ protected boycott 

participation, as well as their boycott-related speech and association. To determine whether 

the government has unconstitutionally infringed a government contractor’s freedom of 

expression and association, courts apply the Pickering analysis used to assess government 

employee speech claims. Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 674–75 (1996); 

see also Pickering v. Bd. of Ed., 391 U.S. 563 (1968); Hudson v. Craven, 403 F.3d 691, 

698 (9th Cir. 2005) (holding that the Pickering analysis applies where the plaintiff raises 

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hybrid speech and association rights). Such cases “usually involve[] disciplinary actions 

taken in response to a government employee’s speech.” United States v. Nat’l Treasury 

Emps. Union, 513 U.S. 454, 466 (1995) (“NTEU”) (striking down a federal statute 

prohibiting government employees from accepting honoraria for outside speaking and 

writing engagements). The First Amendment harms at issue here are graver. 

 First, HB 2617’s “widespread impact . . . gives rise to far more serious [First 

Amendment] concerns than could any single supervisory decision.” Id. at 468. By requiring 

government contractors to certify that they are not engaged in boycotts of Israel, the 

certification requirement directly prohibits a wide amount of protected expression. 

Although the requirement applies only to companies, the Supreme Court has made 

abundantly clear “that the Government may not suppress political speech based on the 

speaker’s corporate identity.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 315 

(201). Like others boycotting Israeli settlement products, Mr. Jordahl and his Firm seek “to 

bring about political, social, and economic change” through the “exercise of [their] First 

Amendment rights.” Claiborne, 458 U.S. at 911. These boycotts are a form of “political 

speech lying at the core of the First Amendment.” Id. at 915 (quoting Henry v. First Nat’l 

Bank of Clarksdale, 595 F.2d 291, 303 (5th Cir. 1979)) (internal quotation marks omitted). 

Blanket restrictions on political expression, including boycott participation, undermine our 

“profound national commitment to the principle that debate on public issues should be 

uninhibited, robust, and wide-open.” Id. at 913 (citations and internal quotation marks 

omitted). Such laws are subject to “exacting scrutiny.” E.g., McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 347 (1995). 

 Second, “unlike an adverse action taken in response to actual speech,” HB 2617’s 

certification requirement “chills speech before it happens.” NTEU, 513 U.S. at 468. The 

certification directly restricts government contractors, like Mr. Jordahl’s Firm, from 

participating in boycotts of Israel. But it also indirectly suppresses a wide range of related 

expression and association. Political boycotts typically involve a range of First Amendment 

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protected activity in addition to the decision not to purchase certain consumer goods or 

services, including: speech about the boycott and related issues; association with other 

boycott participants; demonstrations in support of the boycott; and petitions to public 

officials. See Claiborne, 458 U.S. at 907–12. By requiring government contractors to 

certify that they are not engaged in boycotts of Israel, the certification requirement chills 

government contractors from exercising all of those protected First Amendment rights, for 

fear that such expression could create suspicion about forbidden boycott participation. For 

instance, the certification requirement has prevented Mr. Jordahl’s Firm from providing 

office support, financial contributions, and pro bono legal services to Jewish Voice for 

Peace and other boycott participants. Jordahl Decl. ¶ 26. Moreover, it has chilled Mr. 

Jordahl himself from publicly promoting or discussing his personal boycott participation, 

for fear that this would cast suspicion on his Firm’s compliance with the certification. Id.

¶ 27. This “large-scale disincentive to [government contractors’] expression [and 

association] also imposes a significant burden on the public’s right to read and hear what 

the [contractors] would otherwise have written and said.” NTEU, 513 U.S. at 470. 

 In light of these glaring First Amendment concerns, the state bears a much heavier 

burden of justification than it would in a run-of-the-mill public-employee speech case. Id.

at 468. It “must show that the interests of both potential audiences and a vast group of 

present and future [contractors] in a broad range of present and future expression are 

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

Government.” Id. (quoting Pickering, 391 U.S. at 571). To make this showing, the state 

“must do more than simply ‘posit the existence of the disease sought to be cured.’ . . . It 

must demonstrate that the recited harms are real, not merely conjectural, and that the 

regulation will in fact alleviate these harms in a direct and material way.” Id. at 475 

(omission in original) (citation omitted). The state cannot meet that “exacting standard” 

here. Tucker v. Dep’t of Educ., 97 F.3d 1204, 1210–11 (9th Cir. 1996). Indeed, the Act’s 

Committee Report states that “[t]here is no anticipated fiscal impact to the state General 

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Fund associated with this legislation.” Conf. Comm. Rep. Br. HB 2617, Ariz. 2016 Sess., 

1. It is therefore difficult to see how participation in political boycotts of Israel “so menaces 

the ‘actual operation of the government,’ as to render the [certification requirement’s] 

significant restriction of [contractor] speech [and association] an acceptable response.” 

Sanjour v. EPA, 56 F.3d 85, 95 (D.C. Cir. 1995) (en banc) (quoting NTEU, 513 U.S. at 

468).

 Even if the certification requirement could constitutionally be applied to some 

subset of government contractors, it is nonetheless facially invalid because it is 

overinclusive. “If the government has a substantial interest with respect to only a 

subcategory of the restricted speech, then its interest will not readily outweigh the 

burden imposed on the larger category of speech subject to regulation.” Sanjour, 56 

F.3d at 97. Thus, “[i]n performing the Pickering balance . . . the courts must consider 

whether the challenged statute or regulation is tailored to address the harm that the 

government allegedly aims to protect.” Id. Here, even if there were some limited subset 

of government contractors whose boycott activity legitimately implicated state interests, 

that would not justify preventing a wide range of government contractors—including

individual service providers, small businesses, and social service agencies—from 

participating in protected political boycotts. See id. at 98 (“[W]e believe that the 

extraordinary reach of the challenged regulations places a heavy justificatory burden on 

the government—or put another way, the great quantity of speech affected by the 

regulatory scheme weighs heavily on the side of the employees.”). 

 More likely, the certification requirement is intended to accomplish precisely 

what Claiborne prohibits—the suppression of political boycotts. But whereas Claiborne

concerned a state law that at least theoretically applied to all political boycotts, the 

certification requirement compounds the First Amendment violation by targeting boycotts 

based on their content and viewpoint. “The First Amendment generally prevents 

government from proscribing speech, or even expressive conduct, because of 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 16 of 22
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disapproval of the ideas expressed. Content-based regulations are presumptively 

invalid.” RAV v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted). The 

category of content discrimination “includes a subtype of laws that go further, aimed at 

the suppression of particular views . . . on the subject.” Matal v. Tam, 137 S. Ct. 1744, 

1766 (2017) (Kennedy, J., concurring in part and concurring in the judgment) (citation 

omitted) (alteration in original). “At its most basic, the test for viewpoint discrimination 

is whether—within the relevant subject category—the government has singled out a 

subset of messages for disfavor based on the views expressed.” Id. “It is perhaps the most 

fundamental principle of First Amendment jurisprudence that the government may not 

regulate speech on the ground that it expresses a dissenting viewpoint.” Sanjour, 56 F.3d 

at 96. 

 Suppression of a dissenting viewpoint is HB 2617’s raison d’être. The certification 

requirement prohibits government contractors from participating in boycotts of Israel, 

but allows them to participate in other political boycotts—including boycotts of other 

foreign countries and “reverse boycotts” targeting entities that are themselves engaged 

in boycotts of Israel.7 This is quintessential viewpoint discrimination. See Sanjour, 56 

F.3d at 96–97 (concluding that federal regulations requiring government employees to 

obtain approval before receiving reimbursement for outside speaking engagements were 

likely viewpoint discriminatory because it appeared that the government would not 

approve reimbursement for anti-government speech). At the very least, the certification 

requirement’s selective prohibition is content discriminatory because it prevents 

government contractors from participating in boycotts based on the subject matter of 

those boycotts—i.e., Israel. See, e.g., Police Dep’t of City of Chi. v. Mosley, 408 U.S. 

92, 95 (1972) (holding that a Chicago ordinance exempting peaceful labor picketing from 

7 See, e.g., Roz Rothstein & Roberta Seid, Boycott the Boycotters, Jewish Journal, (Aug. 

25, 2010), http://jewishjournal.com/opinion/82483/.

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 17 of 22
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a general prohibition on picketing next to a school was content discriminatory because 

it “describe[d] permissible picketing in terms of its subject matter”). 

C. HB 2617 Unconstitutionally Compels Speech About Political Beliefs and 

Associations.

 HB 2617 also violates the fundamental First Amendment guarantee against 

government inquisition into protected political beliefs and associations. The Supreme 

Court’s decision in Baird v. State Bar of Arizona is instructive. There, the Court held that 

the First Amendment prohibited the state bar from requiring an applicant “to state whether 

she had ever been a member of the Communist Party or any organization ‘that advocates 

overthrow of the United States Government by force or violence.’” 401 U.S. 1, 4–5 (1971). 

Writing for the plurality, Justice Black stated: “[W]hen a State attempts to make inquiries 

about a person’s beliefs or associations, its power is limited by the First Amendment. Broad 

and sweeping state inquiries into these protected areas, as Arizona has engaged in here, 

discourage citizens from exercising rights protected by the Constitution.” Id. at 6. 

Accordingly, when a state inquires into these protected areas, “a heavy burden lies upon it 

to show that the inquiry is necessary to protect a legitimate state interest.” Id. at 6–7. “And 

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

associations solely for the purpose of withholding a right or benefit because of what he 

believes.” Id. at 7. 

 The same principle applies to conditions imposed on government employment and 

government contracts. See Agency for Int’l Dev. v. All. for Open Society Int’l, Inc., 133 S. 

Ct. 2321, 2330 (2013) (holding that domestic organizations were likely to succeed on their 

challenge to a federal statutory provision requiring federal funding recipients to adopt a 

policy expressly opposing prostitution); Umbehr, 518 U.S. at 674–75 (“We have held that 

government workers are constitutionally protected from dismissal for refusing to take an 

oath regarding their political affiliation” (citations omitted)). Any attempt to penalize a 

government employee’s or contractor’s protected political beliefs or associations violates 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 18 of 22
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the First Amendment, unless “the hiring authority can demonstrate that [a specific political 

belief] is an appropriate requirement for the effective performance of the public [work] 

involved.” Hobler v. Brueher, 325 F.3d 1145, 1149 (9th Cir. 2003). Such political 

allegiance requirements are typically appropriate only for “policymakers” or “confidential 

employees.” Id. at 1149, 1151; see also O’Hare Truck Serv., Inc. v. City of Northlake, 518 

U.S. 712, 726 (1996) (holding that government contractors’ political beliefs and 

associations are entitled to the same First Amendment protection as that received by 

government employees). 

As discussed above, the certification requirement in this case is squarely aimed at 

punishing disfavored political beliefs and associations—i.e., boycott campaigns aimed at 

Israel or Israeli settlements in the occupied Palestinian territories. Companies that 

participate in such campaigns, or that affiliate with boycott participants, are marked with a 

scarlet letter and disqualified from receiving government contracts. To be sure, Mr. Jordahl 

has expressly assumed that the certification does not apply to individual boycott activity 

by a company’s owners or employees. Jordahl Decl. ¶ 23; id., Exh. 2. But that does not 

alleviate the compelled speech harms perpetrated by the Act. See Open Society, 133 S. Ct. 

at 2331. For contractors with numerous employees or owners whose individual identities 

are clearly distinct from the company as a whole, the actions of participating individuals 

would “not afford a means for the [company] to express its beliefs.” Id. (emphasis in 

original). In cases where the company and its owner are closely identified, as Mr. Jordahl 

and his Firm are, the apparent inconsistency between the company’s stated position and 

the owner’s personal activities muddies the message. Id.8

8

 If the certification requirement’s prohibition against affiliating with boycott participants 

included a contractor’s owners or employees, the requirement would be even more 

manifestly unconstitutional than it already appears to be. 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 19 of 22
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D. HB 2617 Violates the First Amendment as Applied to Mr. Jordahl and 

His Firm. 

 Even if the Court concludes that facial relief is inappropriate at this stage, it should 

enjoin Defendants from enforcing the Act against Plaintiffs. Mr. Jordahl is taking part 

in a voluntary, political boycott of Israel. He participates by refusing to use his personal 

income to purchase consumer goods associated with Israeli settlements in the occupied 

Palestinian territories. He would like to extend his boycott to include his Firm’s purchases 

and associations. Mr. Jordahl’s participation in, and his Firm’s desire to join, this political 

boycott a r e fully protected by the First Amendment. Whatever interests Defendants 

may assert to defend HB 2617 as a whole, there is simply no justification for denying 

Plaintiffs the right to fully participate in a political consumer boycott.

II. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction. 

 HB 2617 is currently imposing irreparable harm on Plaintiffs and similarly 

situated government contractors throughout Arizona. It is well settled that a violation 

of constitutional rights, even temporarily, amounts to irreparable harm for purposes of 

the preliminary injunction analysis. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); 

Am. Beverage Ass’n v. City & Cty. of San Francisco, 871 F.3d 884, 898 (9th Cir. 2017). 

Moreover, it is impossible to determine how much protected expression and association 

is currently being chilled by the Act. See Ams. for Prosperity Found. v. Harris, 182 F. 

Supp. 3d 1049, 1059 (C.D. Cal. 2016) (“[T]he government causes ‘irreparable injury’ 

when, as here, it places individuals ‘in fear of exercise their constitutionally protected rights 

of free expression, assembly, and association.’” (quoting Allee v. Medrano, 416 U.S. 

802, 814–15 (1974)). A preliminary injunction is necessary to relieve these significant 

constitutional harms.

III. The Balance of Equities and Public Interest Tip Sharply in Plaintiffs’ 

Favor.

In contrast to the irreparable harm the Act is currently inflicting on Plaintiffs and 

other government contractors, the issuance of a preliminary injunction in this case poses 

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 20 of 22
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little, if any, risk of irreparable harm to Defendants’ legitimate interests. Under such 

circumstances, the scales tip decisively in favor of a preliminary injunction. The Ninth 

Circuit has “consistently recognized the ‘significant public interest’ in upholding free 

speech principles as the ‘ongoing enforcement of the potentially unconstitutional 

regulations would infringe not only the free expression interests of plaintiffs, but also the 

interests of other people.’” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 

2009). In such cases, “[t]he balance of equities and the public interest thus tip sharply in 

favor of enjoining the [offending statutory provision].” Id.

CONCLUSION

For the foregoing reasons, the Court should issue a preliminary injunction 

prohibiting Defendants from enforcing the certification requirement with respect to all 

government contractors. Alternatively, the Court should issue a preliminary injunction 

prohibiting Defendants from enforcing the certification requirement with respect to 

Plaintiffs.

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 21 of 22
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Respectfully submitted this 7th day of December, 2017. 

 /s/ Kathleen E. Brody

Kathleen E. Brody, AZ Bar No. 026331 

Darrell L. Hill, AZ Bar No. 030424 

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* 

ACLU Foundation 

Speech, Privacy & Technology Project 

125 Broad Street, 18th Floor 

New York, NY 10004 

Telephone: (212) 549-2500 

bhauss@aclu.org 

veidelman@aclu.org

bwizner@aclu.org

*Applications for pro hac vice forthcoming

Case 3:17-cv-08263-DJH Document 6 Filed 12/07/17 Page 22 of 22