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Case 3:17-cv-08263-DJH Document 41-1 Filed 02/16/18 Page 1 of 14
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Carly F. Gammill, admitted pro hac vice

AMERICAN CENTER FOR LAW & JUSTICE 

625 Bakers Bridge Ave, Ste 105-121 

Franklin, Tennessee 37067 

Telephone: (615) 599-5572 

Fax: (615) 309-8832 

cgammill@aclj-dc.org 

Counsel for Amicus Curiae American Center for Law & Justice 

UNITED STATES DISTRICT COURT 

FOR THE 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 

AMICUS CURIAE BRIEF OF 

AMERICAN CENTER FOR LAW 

AND JUSTICE IN SUPPORT OF 

DEFENDANTS

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TABLE OF CONTENTS 

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

INTEREST OF AMICUS CURIAE ....................................................................... 1

FACTUAL BACKGROUND ................................................................................ 2 

SUMMARY OF ARGUMENT ............................................................................. 4 

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

The Arizona State Law Does Not Violate the First Amendment 

Because It Constitutes Permissible Government Speech and 

Does Not Unconstitutionally Infringe Private Speech ........................... 4 

CONCLUSION ...................................................................................................... 8 

 

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TABLE OF AUTHORITIES 

Cases 

Bd. of County Comm’rs. v. Umbehr, 

 518 U.S. 668 (1996) ........................................................................................... 6 

Metro. Milwaukee Ass’n of Commerce v. Milwaukee County, 

 359 F. Supp. 2d 749 (E.D. Wis. 2005) ............................................................... 6 

Rust v. Sullivan, 500 U.S. 173 (1991) ............................................................... 5, 8 

Walker v. Texas Division, Sons of Confederate Veterans, Inc., 

 135 S.Ct. 2239 (2015) ..................................................................................... 5, 8 

Waters v. Churchill, 511 U.S. 661 (1994) ......................................................... 6, 8 

Statutes 

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

Ariz. Rev. Stat. §35-393 ................................................................................ 1, 3, 8 

Ariz. Rev. Stat. §35-393.01 ................................................................................... 3

Legislative Materials 

HB 2617, 52nd Ariz. Leg. §2 (2016), “Legislative findings,” 

 https://www.azleg.gov/legtext/52leg/2r/bills/hb2617p.pdf. ............................... 3 

Other Authorities 

Int. Trade. Admin., Arizona Exports, Jobs, & Foreign Investment, U.S. Dept. of 

 Comm. (Feb. 2017), 

 https://www.trade.gov/mas/ian/statereports/states/az.pdf. ............................. 2, 7 

Jewish Virtual Library, State-to-State Cooperation: Arizona and Israel, Jewish 

 Virtual Library (Feb. 15, 2018), http://www.jewishvirtuallibrary.org/arizona- 

 israel-cooperation ............................................................................................... 7 

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INTEREST OF AMICUS CURIAE

Amicus, the American Center for Law and Justice (ACLJ), is an 

organization dedicated to the defense of constitutional liberties secured by law. 

ACLJ attorneys have argued numerous cases before the Supreme Court of the 

United States and have participated as amicus curiae in a number of significant 

cases involving the Free Speech Clause of the First Amendment. 

Amicus has dedicated time and effort to defending and protecting 

Americans’ First Amendment freedoms. The ACLJ’s commitment to the 

integrity of the United States Constitution and Bill of Rights compels it to 

support the State of Arizona in its efforts, including the enactment of Arizona 

Revised Statutes § 35-393, to avoid becoming complicit in the global Boycott, 

Divestment and Sanctions (BDS) Movement, a discriminatory form of economic 

warfare targeting the State of Israel. 

 

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FACTUAL BACKGROUND 

The BDS movement operates as a coordinated, sophisticated effort to 

disrupt the economy of the State of Israel, with the ultimate goal of destroying 

the nation altogether. It uses the threat of withdrawing financial support in an 

effort to coerce companies to cease or refuse to engage in business relations with 

Israel, its nationals, and its residents. Moreover, it often discriminatorily targets 

people who are Jewish or who do business with persons who are Jewish. 

The State of Arizona has chosen not to participate or become complicit in 

this boycott. The State does a tremendous amount of business with Israel. From 

2006-2016 Israel was Arizona’s third fastest growing trade partner. Int. Trade. 

Admin., Arizona Exports, Jobs, & Foreign Investment, U.S. Dept. of Comm. 

(Feb. 2017), https://www.trade.gov/mas/ian/statereports/states/az.pdf. It would 

be both illogical and irresponsible to do business with companies engaged in 

economic warfare against one of the State’s leading trade partners. As the State 

legislature pointed out in its legislative findings here: 

Boycotts and related tactics have become a tool of economic 

warfare that threaten the sovereignty and security of key allies and 

trade partners of the United States. The state of Israel is the most 

prominent target of such boycott activity. . . . Companies that refuse 

to deal with United States trade partners such as Israel, or entities 

that do business with or in such countries, make discriminatory 

decisions on the basis of national origin that impair those 

companies’ commercial soundness. It is the public policy of the 

United States, as enshrined in several federal acts, including 50 

United States Code section 4607, to oppose such boycotts, and 

Congress has concluded as a matter of national trade policy that 

cooperation with Israel materially benefits United States companies 

and improves American competitiveness. Israel in particular is 

known for its dynamic and innovative approach in many business 

sectors, and a company’s decision to discriminate against Israel, 

Israeli entities or entities that do business with Israel or in Israel is 

an unsound business practice making the company an unduly risky 

contracting partner or vehicle for investment. This state seeks to 

implement Congress’s announced policy of “examining a 

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company’s promotion or compliance with unsanctioned boycotts, 

divestment from, or sanctions against Israel as part of its 

consideration in awarding grants and contracts and supports the 

divestment of State assets from companies that support or promote 

actions to boycott, divest from, or sanction Israel.” 

HB 2617, 52nd Ariz. Leg. § 2 (2016), “Legislative findings,” 

https://www.azleg.gov/legtext/52leg/2r/bills/hb2617p.pdf. Accordingly, in 

March 2016, the Arizona State Legislature enacted Ariz. Rev. Stat. § 35-393 

(hereinafter the “Statute”). Section 35-393.01 of the Statute prohibits the State 

of Arizona, or any of its agencies, from entering into any contract with 

companies that are complying with or adhering to third-party calls for a boycott 

of Israel. Ariz. Rev. Stat. § 35-393; § 35-393.01. 

Plaintiff Mikkel Jordahl is an Arizona-based attorney who is actively 

involved in organizations that share a common anti-Israel bias and agenda. 

Jordahl Compl. ¶¶ 26–28. In the past, Jordahl, through his sole proprietorship, 

has contracted with the State of Arizona to provide legal advice and training to 

inmates at the Coconino County Jail District. Id., ¶¶ 29–30. In the fall of 2016, 

Jordahl applied to renew his contract and, in compliance with the statute, was 

required to certify that his business was not acting in compliance with or 

adherence to calls for a boycott against Israel. Id., ¶¶ 31–33. Despite objecting, 

citing First Amendment concerns, he signed the agreement and certified that his 

company would be complying with the Statute but that he, in his personal 

capacity, would not necessarily refrain from the types of boycotts addressed in 

the Statute. Id., ¶¶ 33-35. The County accepted his certification, and Jordahl 

abided by the terms of the certification, including separating his personal 

boycott participation from the workings of his firm. Id., ¶¶ 36-37. 

In November 2017, Jordahl chose not to renew his contract with the State 

of Arizona, citing his objection to the Statute. Id., ¶¶ 38–41. On December 7, 

2017, Jordahl, represented by the American Civil Liberties Union (ACLU), filed 

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this lawsuit against the State of Arizona claiming that the Statute simultaneously 

chills and compels private speech in violation of the First Amendment. 

SUMMARY OF ARGUMENT 

The Statute is a quintessential example of constitutional government 

speech whereby the State of Arizona has determined which agendas and policies 

it will and will not support when contracting with commercial partners. The 

government is not required to remain viewpoint-neutral in such circumstances 

but is instead permitted to take or not take a position of its own. In this case, the 

State of Arizona has merely chosen not to enter into business relations with 

companies that participate in activity that directly undermines the State’s own 

commercial policies and interests. 

To the extent that private speech may be implicated here, the Statute has 

no unconstitutional chilling effect, nor does it unconstitutionally compel private 

speech. Because the State is acting here not as sovereign but instead in its 

capacity as a contractor, its substantial interests in ensuring the efficient and 

effective operation of government services greatly outweighs any private speech 

rights that may be implicated by the terms of the Statute. Furthermore, the 

Statute does not prohibit any private individual, acting in a personal capacity 

and according to a personal choice, from boycotting the State of Israel or 

engaging in related speech of his or her choosing, as Mr. Jordahl’s Complaint 

makes absolutely clear. 

ARGUMENT 

The Arizona Statute Does Not Violate the First Amendment Because It 

Constitutes Permissible Government Speech and Does Not 

Unconstitutionally Infringe Private Speech. 

The Complaint alleges that the Statute’s certification requirement 

unconstitutionally compels speech and engages in viewpoint discrimination. In 

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fact, however, it does neither. The Statute only regulates government speech 

(i.e., in the context of contractual spending) and relays the government’s 

decision concerning those companies with which it wishes to conduct business. 

The Supreme Court in Walker v. Texas Division, Sons of Confederate Veterans, 

Inc., held that “[w]hen government speaks, it is not barred by the Free Speech 

Clause from determining the content of what it says.” 135 S.Ct. 2239, 2246 

(2015). Without this ability, the government “would [simply] not work.” Id. In 

fact, the Supreme Court has continually refused “[t]o hold that the Government 

unconstitutionally discriminates on the basis of viewpoint when it chooses to 

fund a program dedicated to advance certain permissible goals, because the 

program in advancing those goals necessarily discourages alternative goals.” Id. 

(citing Rust v. Sullivan, 500 U.S. 173, 194 (1991)). 

In Rust, the Supreme Court found that regulations prohibiting the use of 

Title X funds for abortion, and even the pure speech of abortion-related 

counseling, did not violate any free speech rights held by program recipients. 

Rust, 500 U.S. at 173. As the Court noted, holding a program unconstitutional 

because the Government advocates for one viewpoint – but not a countervailing 

one – would mean that government funding of efforts to establish democracy 

abroad would require equal funding for efforts advocating for communism and 

fascism. Id. at 194. As in Rust, the State here is “simply insisting that the public 

funds be spent for the purposes for which they were authorized.” Id. at 196. The 

terms of the Statute merely confirm that the State’s commercial contracting 

funds are authorized to be spent only in furtherance of the commercial policies 

and interests of the State. Contracting with companies that wish to undermine 

those interests, unremarkably, is therefore not authorized. 

In its capacity as contractor, the State is required to ensure that it does not 

contract with companies engaging in activity contrary to the economic best 

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interests of the state. What the Supreme Court explained about the government 

as employer in Waters v. Churchill likewise applies to the government as 

contractor: 

[C]onstitutional review of government [contracting] decisions must 

rest on different principles than review of speech restraints imposed 

by the government as sovereign. . . . [T]he extra power the 

government has in this area comes from the nature of the 

government’s mission as [contractor]. Government agencies are 

charged by law with doing particular tasks. Agencies hire 

employees [and contract with other persons] to help do those tasks 

as effectively and efficiently as possible. When someone who is 

paid a salary [or offered funds through a government commercial 

contract] so that she will contribute to an agency’s effective 

operation begins to do or say things that detract from the agency’s 

effective operation, the government [as contractor] must have some 

power to restrain her. . . . The key to First Amendment analysis of 

government [contracting] decisions, then, is this: The government’s 

interest in achieving its goals as effectively and efficiently as 

possible is elevated from a relatively subordinate interest when it 

acts as sovereign to a significant one when it acts as [contractor]. 

511 U.S. 661, 674-675 (1994) (bracketed language inserted to reflect contracting 

rather than strictly employment context). 

This is not a controversial idea, as courts have clearly recognized both the 

similarity of these two governmental roles and the heightened authority to 

restrict speech in pursuing these roles: 

When a governmental entity acts as a contractor or employer, it has 

broader authority to restrict the speech of the party with whom it 

contracts or whom it employs than it does when it acts as a 

sovereign and restricts the speech of members of the public. 

Metro. Milwaukee Ass’n of Commerce v. Milwaukee County, 359 F. Supp. 2d 

749, 765 (E.D. Wis. 2005) (citing Bd. of County Comm’rs v. Umbehr, 518 U.S. 

668, 673-81 (1996) and Waters, 511 U.S. at 671). 

It is thus especially true – and even obvious – that the government is not 

required to contract or do business with an entity that is boycotting an ally and a 

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legitimate business partner of the state in a manner that could cause significant 

harm to the state’s economy. There are almost a hundred different Arizona 

companies that do business with the State of Israel. Int. Trade. Admin., Arizona 

Exports, Jobs, & Foreign Investment, U.S. Dept. of Comm. (Feb. 2017), 

https://www.trade.gov/mas/ian/statereports/states/az.pdf. From 1996 to the 

present day, Arizona has exported more than $2.7 billion USD to Israel. Jewish 

Virtual Library, State-to-State Cooperation: Arizona and Israel, Jewish Virtual 

Library (Feb. 15, 2018), http://www.jewishvirtuallibrary.org/arizona-israelcooperation. Grants shared between Israel and Arizona have been used for 

agricultural, industrial, and scientific development, totaling nearly $7 million 

USD over time. Id. Researchers at Ben-Gurion University and Arizona State 

University have signed collaborative research agreements for work in areas like 

cybersecurity, nanotechnology, robotics, and advances in medical equipment. Id. 

The University of Arizona’s Water Resources Research Center and the Udall 

Center for Studies in Public Policy were responsible for holding an “ArizonaIsrael-Palestinian Water Management & Policy Workshop” as all the parties 

have the common goal of increasing access to water in the desert environments 

in which they all live. Id. The relationship between Israel and Arizona has led to 

quantifiable financial gains, advances in technology, environmental 

developments, and any of a number of successes that make it essential for them 

to maintain a healthy relationship. It would be absurd to think that the State of 

Arizona cannot refrain from doing official commercial business with companies 

that boycott one of the State’s key trade partners. Indeed, doing such business 

could cost the State significantly. 

In light of the foregoing, there is no issue of compelled speech here. To 

make sure that the commercial interests of the State are not infringed, Arizona 

simply asks that its contractors confirm their commitment to not engage in any 

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discriminatory conduct against a key Arizona trade partner, and only for the 

duration of the contract with the State. The government is not requiring 

individual companies or institutions that engage in BDS activities targeting 

Israel to alter their beliefs, stop their support for BDS, or change their messages 

in any way. The statute merely expresses the government’s position on the issue, 

explains how and where it will spend public contracting funds within its 

jurisdiction, and notifies the public as to its decision. This is consistent with the 

Supreme Court’s prior rulings in Rust, Walker, and Waters. 

Notably, nothing in the Statute affects in any way the boycott activities of 

any individual, who, in operating a company, may simultaneously comply with 

the Statute’s terms commercially while engaging in anti-Israel boycott activities 

personally. Indeed, this is the exact approach Plaintiff utilized for an entire year 

before deciding he would no longer keep his personal feelings separate from 

those of his firm. Jordahl Compl. ¶¶ 36-37. However, while Mr. Jordahl, and 

other individuals of like mind, are in no way required by the Statute to change 

their personal thoughts or feelings on this issue, the State is likewise not 

required to contract with any company engaged in these activities, since to do so 

would directly and substantially interfere with Arizona’s own commercial 

positions and interests. 

CONCLUSION 

Because the purpose of the law is a legitimate expression of state and 

national policy in foreign relations and commerce, i.e., government speech, and 

does not impermissibly infringe private speech, the First Amendment is not 

violated here. Amicus urges this Court to recognize as much and decline 

Plaintiff’s invitation to enjoin A.R.S. §35-393. 

Dated: February 16, 2018 Respectfully submitted, 

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Jay Alan Sekulow, Counsel of Record

Stuart J. Roth 

Jordan Sekulow 

Mark Goldfeder 

Jeffrey Ballabon 

AMERICAN CENTER FOR LAW & JUSTICE 

201 Maryland Avenue, N.E. 

Washington, DC 20002 

Telephone: (202) 546-8890 

/s/ Carly F. Gammill 

Carly F. Gammill, admitted pro hac vice 

AMERICAN CENTER FOR LAW & JUSTICE 

625 Bakers Bridge Avenue, Ste 105-121 

Franklin, TN 37067 

Telephone: (615) 599-5572 

Fax: (615) 309-8832 

Attorneys for Amicus Curiae American Center 

for Law & Justice 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 16th day of February, 2018, I caused the 

foregoing document to be electronically transmitted to the Clerk’s Office using 

the CM/ECF System for Filing. I certify that all participants in the case are 

registered CM/ECF users and that service will be accomplished by the CM/ECF 

System. 

Dated: February 16, 2018 /s/ Carly F. Gammill 

Carly F. Gammill, admitted pro hac vice 

AMERICAN CENTER FOR LAW & JUSTICE 

625 Bakers Bridge Avenue, Ste 105-121 

Franklin, TN 37067 

Telephone: (615) 599-5572 

Fax: (615) 309-8832 

cgammill@aclj-dc.org 

 

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