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CAIR LEGAL DEFENSE FUND

Lena F. Masri (D.C. Bar # 100019) (seeking pro hac vice admission)

Email: lmasri@cair.com

Gadeir I. Abbas* (VA Bar # 81161) (seeking pro hac vice admission)

Email: gabbas@cair.com

Carolyn M. Homer (D.C. Bar # 1049145) (seeking pro hac vice admission)

Email: chomer@cair.com

453 New Jersey Ave., SE

Washington, DC 20003

Phone: (202) 742-6420

Fax: (202) 379-3317

KELLY / WARNER, PLLC

8283 N. Hayden Road, Suite 229

Scottsdale, Arizona 85258 

Raeesabbas Mohamed, Esq. (AZ Bar # 027418)

Email: raees@kellywarnerlaw.com

Phone: (480) 331-9397

Fax: (866) 961-4984

Attorneys for Plaintiffs 

* Licensed in VA, not in D.C.

Practice limited to federal matters

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

PHOENIX DIVISION

AMERICAN MUSLIMS FOR PALESTINE

and DR. HATEM BAZIAN 

Plaintiffs,

vs.

ARIZONA STATE UNIVERSITY; ARIZONA 

BOARD OF REGENTS; and MARK 

BRNOVICH, in his official capacity as 

Attorney General of Arizona

Defendants.

Case No. CV-18-670-PHX-JJT

MEMORANDUM IN SUPPORT OF 

APPLICATION FOR PRELIMINARY 

INJUNCTIVE RELIEF

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TABLE OF CONTENTS

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

FACTUAL BACKGROUND ............................................................................................1

A. The Political Climate Surrounding the Peaceful Palestinian Boycott, Divestment 

and Sanctions Movement ...............................................................................................1

B. Arizona Passes Anti-Boycott, Divestment, and Sanctions Legislation Requiring 

Government Contracts to Ban Support for Boycotts of Israel .......................................2

C. The Muslim Students Association of Arizona State University Invites Pro- Palestine Speakers to April 3, 2018 Campus Event.......................................................3

ARGUMENT......................................................................................................................5

II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS THAT ARIZONA’S ANTI- BDS ACT VIOLATES THE FIRST AMENDMENT ...................................................................6

A. Participation in Consumer Boycotts Constitutes Protected Speech and 

Expressive Conduct........................................................................................................6

B. Because Arizona State University Offers a Limited Public Forum for Student 

Activities, It Cannot Discriminate Against BDS Viewpoints........................................7

C. Arizona’s anti-BDS Act Targets Specific Content and Speakers............................9

D. Arizona’s anti-BDS Act and “No Boycott of Israel” Clause Run Afoul of other 

First Amendment Doctrines.........................................................................................10

E. Arizona’s anti-BDS Act and “No Boycott of Israel” Clause are not Narrowly 

Tailored to Fulfill Compelling Governmental Interests...............................................13

III. THE REMAINING PRELIMINARY INJUNCTION FACTORS WEIGH IN FAVOR OF 

ENJOINING ENFORCEMENT OF THE ANTI-BDS LAW AND “NO BOYCOTT OF ISRAEL” CLAUSE .............................................................................................................................14

CONCLUSION ................................................................................................................16

RELIEF REQUESTED ....................................................................................................16

APPENDIX

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TABLE OF AUTHORITIES

Cases

Agency for International Development v. Alliance for Open Society International, Inc.,

133 S. Ct. 2321 (2013) ................................................................................................... 11

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).................................................................................... 6, 15

Arc of California v. Douglas, 757 F.3d 975 (9th Cir. 2014)...................................................................................... 5, 14

Boos v. Barry, 485 U.S. 312 (1988)......................................................................................................... 9

Coates v. Cincinnati, 402 U.S. 611 (1971)....................................................................................................... 11

Elrod v. Burns, 427 U.S. 347 (1976)....................................................................................................... 14

Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012).......................................................................................... 15

Forsyth 4 County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992)....................................................................................................... 10

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2008)........................................................................................ 15

Koontz v. Watson, No. 17-cv-4099, 2018 U.S. Dist. LEXIS 14260 (D. Kan. Jan. 30, 2018)........ 1, 7, 10, 11

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). .................................................................................................... 7, 8

M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012)...................................................................................... 6, 15

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)..................................................................................................... 6, 7

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

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972)........................................................................................................... 8

Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014).......................................................................................... 15

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ................................................................................... 6, 10, 13, 14

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Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995). ............................................................................................ 6, 7, 8, 9

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011)........................................................................................ 15

Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013).......................................................................................... 14

Ward v. Rock Against Racism, 491 U.S. 781 (1989)......................................................................................................... 9

Constitution & Statutes

U.S. CONST. Amend. I.................................................................................................passim

Ariz. Rev. Stat. § 35-393 et seq...................................................................................passim

Other Authorities

2016 Ariz. HB 2617 § 2 (Mar. 17, 2016) .......................................................................... 10

Boston Non-Importation Agreement (Aug. 1, 1768) ........................................................... 6

Induce, OXFORD LIVING DICTIONARIES............................................................................. 12

U.N. Resolution 2334, UNITED NATIONS SECURITY COUNCIL (Dec. 23, 2016) .............. 1, 2

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INTRODUCTION

The State of Arizona cannot impose viewpoint-discriminatory conditions on either 

government contracts or campus speech. In 2016, Arizona enacted Ariz. Rev. Stat. § 35-

393 et seq., a law aimed at discouraging Palestinian activism within the state by 

prohibiting government contractors from engaging in boycotts of Israel. Pursuant to that 

law, the Arizona Board of Regent’s contract regarding presentations at Arizona State 

University now requires speakers to certify that they do not boycott Israel. Plaintiffs 

American Muslims for Palestine and Dr. Hatem Bazian, the invited speakers for an April 

3, 2018 educational event hosted by the Muslim Students Association at Arizona State 

University, cannot assent to such a provision. Plaintiffs now bring this action to enjoin 

enforcement of the Act as an unconstitutional trespass on fundamental First Amendment 

protections. 

The District of Kansas recently enjoined enforcement of a substantively identical 

Kansas law. Koontz v. Watson, No. 17-cv-4099, 2018 U.S. Dist. LEXIS 14260 (D. Kan. 

Jan. 30, 2018). The Distract of Kansas found that those who band together through 

boycotts to express dissatisfaction with the Palestinian plight “seek to amplify their voices 

to influence change” and “are engaged in protected activity.” Id. at *24. This Court 

should reach the same result. Arizona’s ban on state contractors who boycott Israel must 

be enjoined as inconsistent with the First Amendment, thereby permitting Plaintiffs’ April 

3, 2018 presentation at Arizona State University to proceed.

FACTUAL BACKGROUND

A. The Political Climate Surrounding the Peaceful Palestinian Boycott, 

Divestment and Sanctions Movement

The conflict between Israel and Palestine is an internationally significant political 

conflict. See Declaration of Dr. Hatem Bazian ¶ 4. One of the core disputes within the 

conflict concerns Israeli occupation and political control over Palestinian territory, 

including the West Bank and Golan Heights. Id.

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On December 23, 2016, the United Nations Security Council unanimously (with 

the United States abstaining) adopted U.N. Resolution 2334 (the “Resolution”). Bazian 

Decl. ¶ 5, Ex. A. The Resolution condemned Israeli settlements in Palestinian territory, 

and reaffirmed that continuing settlements “constitute[e] a flagrant violation under 

international law and a major obstacle to the achievement of the two-State solution and a 

just, lasting and comprehensive peace.” Id. The United States abstained from the vote 

because it is a close political, economic, and military ally of Israel. Id. ¶ 5. Although 

official United States policy is to discourage Israeli settlements in Palestinian territory, the 

United States has not historically taken formal action to advance that position. Id.

The merits of all perspectives on the Israel-Palestine conflict and the U.S.’s 

political actions related to it are robustly and publicly debated by leading politicians, 

academics, universities, non-profit organizations, businesses, and media pundits in the 

United States and around the world. Id. ¶ 6. In support of the Palestinian perspective on 

this conflict, the international “BDS” movement calls for “Boycott, Divestment, and 

Sanctions” of Israeli activity which does not comport with international law. Id. ¶¶ 7-8. 

The BDS movement began on July 9, 2005, and identifies three specific goals for its 

activism: (1) End Israeli occupation and settlement in Palestinian lands; (2) Recognize 

Palestinians living in Israel as full citizens with equal fundamental rights; and (3) Provide 

Palestinian refugees with a right of return to their homes. Id. ¶ 7. Forms of BDS activism 

to achieve those goals vary, and are neither centrally directed nor controlled. Bazian Decl. 

¶ 8; Declaration of Taher Herzallah ¶¶ 3-5.

B. Arizona Passes Anti-Boycott, Divestment, and Sanctions Legislation 

Requiring Government Contracts to Ban Support for Boycotts of Israel

In recent years, public officials throughout the United States have called for and 

advanced measures to discourage Boycott, Divestment, and Sanctions activity within the 

United States. On March 17, 2016, Arizona enacted HB 2617, codified at Ariz. Rev. Stat. 

§ 35-393 et seq. (the “Act”). Ariz. Rev. Stat. § 35-393.01 provides: “A public entity may 

not enter into a contract with a company to acquire or dispose of services, supplies, 

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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.” The Act defines “Boycott” to include “engaging in a 

refusal to deal, terminating business activities or performing other actions that are 

intended to limit commercial relations with Israel.” Ariz. Rev. Stat. § 35-393.

In support of the Act, the Arizona legislature found that “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,” particularly Israel. 2016 Ariz. HB 

2617 § 2(A) (Legislative Findings). The legislature then concluded that “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.” Id. § 2(E). The complete Act is appended to this memorandum.

Based on the Act, the Arizona Board of Regents and Arizona State University have 

inserted “No Boycott of Israel” language into their standard contracts. In particular, 

Paragraph 20 of the “Speaker/Artist/Performer Agreement” now reads: “No Boycott of 

Israel. As required by Arizona Revised Statutes § 35-393.01, Entity certifies it is not 

currently engaged in a boycott of Israel and will not engage in a boycott of Israel during 

the term of this Contract.” Bazian Decl. ¶¶ 12-14, Ex. B; Herzallah Decl. ¶¶ 7-8, Ex. A.

C. The Muslim Students Association of Arizona State University Invites 

Pro-Palestine Speakers to April 3, 2018 Campus Event

Arizona State University is a robust research institution with multiple programs 

engaged in research and dialogue on political and religious conflict in the Middle East. 

These programs include ASU’s School of Politics and Global Studies; School of 

Historical, Philosophical, and Religious Studies; Department of Jewish Studies; Council 

for Arabic and Islamic Studies; Center for the Study of Religion and Conflict; and Center 

for Strategic Communication. See Declaration of Gadeir Abbas ¶ 4, Ex. C (landing pages 

of ASU programs). 

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Arizona State University also provides an open venue for its diverse student body 

to organize into groups and host educational events. See Abbas Decl. ¶ 2, Ex. A (Arizona 

State University Student Organization Handbook). ASU promotes the ease by which “any 

student can take the initiative to create a new student organization” (id. at 2), reserve 

physical facilities for student events (id. at 8-11), and “make friends with those who have 

similar interests as well as learn about, understand and appreciate other cultures, identities 

and perspectives” (id. at 2). Moreover, ASU’s policy on academic freedom states “The 

pursuit and communication of knowledge at ASU are to be free from restrictions and 

include respect for ... the right of all to attempt to persuade by reasoned argument or 

peaceful processes.” See Abbas Decl. ¶ 3, Ex. B (ASU Academic Affairs Manual § 201).

ASU student organizations with interests in Middle East politics include the 

Muslim Students Association, Students for Justice in Palestine, and Students Supporting 

Israel. See Abbas Decl. ¶ 5, Ex. D (excerpts of ASU’s searchable student organization 

portal). These and other student groups regularly host educational events on campus, and

invite guest speakers. See Abbas Decl. ¶¶ 6-8, Ex. E-G (public pages for past Muslim 

Students Association, Students for Justice in Palestine, and Hillel Jewish Student Center 

events). In particular, the Muslim Students Association at Arizona State University 

promotes interfaith and intellectual dialogue by inviting Muslim members of the 

community to offer their perspectives on American life and international conflict. See 

Abbas Decl. ¶ 6, Ex. E. 

For a student organization to obtain formal approval to host an event, the Arizona 

Board of Regents and Arizona State University require some basic paperwork, like preclearing the availability of physical facilities. See Abbas Decl. ¶ 2, Ex. A at 8 (“Events 

and Space Reservations”). Invited outside speakers must also sign the University’s 

boilerplate “Speaker/Artist/Performer Agreement.” Bazian Decl. ¶¶ 12-14, Ex. B; 

Herzallah Decl. ¶¶ 6-8, Ex. A. At some point following passage of Ariz. Rev. Stat. § 35-

393 in March 2016, the Arizona Board of Regents and Arizona State University inserted 

the “No Boycott of Israel” clause into their standard speaker agreement.

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On February 22, 2018, the leadership of the Muslim Students Association invited 

American Muslims for Palestine and Dr. Hatem Bazian to present on the BDS movement 

at an April 3, 2018 campus event, and attached the “Speaker/Artist/Performer 

Agreement.” Bazian Decl. ¶ 12; Herzallah Decl. ¶¶ 6-7. Both American Muslims for 

Palestine and Dr. Hatem Bazian actively engage in, and advocate for, boycotts of Israel 

due to Israel’s continuing violations of international law in its treatment of Palestinians. 

Bazian Decl. ¶ 14; Herzallah Decl. ¶ 8. American Muslims for Palestine has long been at 

the forefront of the BDS movement. Herzallah Decl. ¶¶ 3-5. American Muslims for 

Palestine has spearheaded BDS activism in the United States, such as a BDS campaign 

against SodaStream. Herzallah Decl. ¶ 4. SodaStream is an Israeli company which used 

to operate a factory in the West Bank; in October 2014, and in response to the boycott, 

SodaStream announced it would close the factory. Id.

Dr. Bazian and American Muslims for Palestine would like to accept the Muslim 

Students Association’s invitation and present on the peaceful Boycott, Divestment, and 

Sanctions movement on April 3, 2018. Bazian Decl. ¶ 12; Herzallah Decl. ¶ 6. However, 

neither Dr. Bazian nor American Muslims for Palestine will sign the contract with the “No 

Boycott of Israel” provision, which is required by Arizona state law. Bazian Decl. ¶ 14; 

Herzallah Decl. ¶ 8. As advocates for Palestinian rights and justice, they cannot in good 

faith state that they do not boycott Israel, and will not advocate for the boycott of Israel. 

Id. The “No Boycott of Israel” clause in ASU’s standard speaker agreement is, to 

Plaintiffs’ knowledge, the only institutional and legal roadblock to their participation in 

the scheduled April 3, 2018 event. Bazian Decl. ¶ 16; Herzallah Decl. ¶ 8.

ARGUMENT

“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.” Arc of California v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014)

(citation omitted). The Ninth Circuit uses a “sliding scale approach to preliminary 

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injunctions,” under which a preliminary injunction should issue “where the likelihood of 

success is such that serious questions going to the merits were raised and the balance of 

hardships tips sharply in plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 632 

F.3d 1127, 1131-32 (9th Cir. 2011) (formatting and citation omitted); accord M.R. v. 

Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012). 

II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS THAT 

ARIZONA’S ANTI-BDS ACT VIOLATES THE FIRST AMENDMENT

The First Amendment provides: “Congress shall make no law . . . abridging the 

freedom of speech, or of the press.” U.S. CONST. Amend. I. The First Amendment equally 

binds the State of Arizona through the incorporation doctrine of the Fourteenth 

Amendment. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 

822 (1995). State governments have “no power to restrict expression because of its 

message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, 135 S. Ct. 

2218, 2226 (2015).

A. Participation in Consumer Boycotts Constitutes Protected Speech and 

Expressive Conduct

The founding story of America, taught every year to elementary school students

nationwide, begins with colonial boycotts to protest British taxes. See, e.g., Boston NonImportation Agreement (Aug. 1, 1768). Boycotts have served critical expressive 

purposes at other times in American history. During the Civil Rights Moment of the 

1960s, black citizens in Mississippi “presented white elected officials with a list of 

particular demands for racial equality and integration.” NAACP v. Claiborne Hardware 

Co., 458 U.S. 886, 889 (1982). When those demands were not satisfied, the National 

Association for the Advancement of Colored Peoples called for a complete boycott of the 

area’s white merchants. Id. “The boycott was supported by speeches and nonviolent 

picketing. Participants repeatedly encouraged others to join in its cause.” Id. at 907. 

The Supreme Court in Claiborne recognized that all (non-violent) aspects of the 

NAACP boycott constituted “form[s] of speech or conduct that [are] ordinarily entitled to 

protection under the First and Fourteenth Amendments.” Id. at 907, 915. It held that a 

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State’s “broad power to regulate economic activity” simply does not extend to 

“prohibit[ing] peaceful political activity such as that found in [a] boycott” which 

expresses concern on critical public issues and showcases a desire for self-government. 

Id. at 913. Such activity “rest[s] on the highest rung of the hierarchy of First Amendment 

values.” Id. (internal citation omitted).

BDS boycotts are fully protected expressive activity under the First Amendment. 

American Muslims for Palestine and Dr. Bazian have “banded together” with the global 

Boycott, Divestment and Sanctions movement in order “to express, collectively, their 

dissatisfaction with Israel and to influence governmental action...[They] and others 

participating in this boycott of Israel seek to amplify their voices to influence change, as 

did the boycotters in Claiborne.” Koontz v. Watson, No. 17-cv-4099, 2018 U.S. Dist. 

LEXIS 14260, at *24 (D. Kan. Jan. 30, 2018) (enjoining similar anti-BDS law in Kansas). 

B. Because Arizona State University Offers a Limited Public Forum for 

Student Activities, It Cannot Discriminate Against BDS Viewpoints

Public universities which permit a wide range of educational activities by a wide 

range of student organizations provide limited public forums for speech. Rosenberger, 

515 U.S. at 829. “Viewpoint discrimination ... is presumed impermissible when directed 

against speech otherwise within the forum’s limitations.” Id. at 830. Any “ideologically 

driven attempts to suppress a particular point of view” within a limited public forum “are 

presumptively unconstitutional.” Id. at 830.

In Arizona, the general “subject matter” of Middle East conflict “is not one that the 

[school] has placed off limits to any and all speakers.” See Lamb’s Chapel v. Ctr. 

Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993). Rather, ASU sponsors at least 

a half-dozen academic programs related to the internationally important subjects of Israel 

and Palestine. See Abbas Decl. ¶ 4, Ex. C. ASU has also granted official recognition to 

student organizations representing both Israeli and Palestinian perspectives, including 

“Students Supporting Israel” and “Students for Justice in Palestine.” See Abbas Decl. ¶ 5, 

Ex. D at 10. ASU has permitted student organizations to present both pro-Palestinian and 

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pro-Israeli messages in the past. See Abbas Decl. ¶¶ 7-8, Exs. F-G (student event pages 

for “Israeli Apartheid Week” and “ASU Israel Day”). Both Dr. Bazian and Mr. Herzallah 

of American Muslims for Palestine have previously visited ASU to offer messages on the 

Israel – Palestine conflict. Bazian Decl. ¶ 11; Herzallah Decl. ¶¶ 9-10. 

According to ASU’s policies and commitments to diversity and dialogue, all such 

educational events on Israel and Palestine should still be permitted on campus. See Abbas 

Decl. ¶¶ 2-3, Exs. A-B (ASU policies on student organizations and academic freedom). 

But Defendants’ enforcement of Ariz. Rev. Stat. § 35-393 and imposition of a “No 

Boycott of Israel” contractual clause now presents a viewpoint-based hindrance to those 

activities. Although, in theory, classroom and student event discussion of the Boycott, 

Divestment, and Sanctions movement is permitted, the ASU community is now deprived 

of hearing from actual experts and participants in that movement. See Bazian Decl. ¶¶ 2-

14; Herzallah Decl. ¶¶ 2-5, 8. 

 The viewpoint-discrimination purpose of Arizona’s “No Boycott of Israel” clause 

is apparent by what the contract does not prohibit. ASU’s form contract and policies raise 

no hindrance to a student group sponsoring an educational discussion on Israeli 

settlements in the West Bank, so long as the speakers were neutral or identified as proIsraeli. It is only pro-Palestinian participants in the BDS movement who are barred from 

speaking. See Bazian Decl., Ex. B; Herzallah Decl., Ex. A (identical copies of 

Speaker/Artist/Performer Agreement including ¶ 20).

There is thus no indication that Plaintiffs are unable to speak at the April 3, 2018 

Muslim Students Associations event “other than the fact that the presentation would have 

been from a [Palestinian] perspective.” See Lamb’s Chapel, 508 U.S. at 393-394. 

“Denial on that basis [is] plainly invalid” viewpoint discrimination. Id. at 394; accord 

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (Illinois statute 

distinguishing between labor and anti-labor protestors failed strict scrutiny because the 

First Amendment condemns “discrimination among different users of the same medium 

for expression”). Because viewpoint-based discrimination is the most “blatant” and 

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“egregious” form of speech discrimination, both the Act and the “No Boycott of Israel” 

clause must each be enjoined. See Rosenberger, 515 U.S. at 828-29. 

C. Arizona’s anti-BDS Act Targets Specific Content and Speakers 

Although viewpoint-based discrimination is the most “egregious” First Amendment 

violation, content-based and speaker-based restrictions on speech are also presumptively 

unconstitutional. See Rosenberger, 515 U.S. at 828-29 (“It is axiomatic that the 

government may not regulate speech based on its substantive content or the message it 

conveys...In the realm of private speech or expression, government regulation may not 

favor one speaker over another.”). 

A law or regulation is content-based, and presumptively unconstitutional, if “the 

government has adopted a regulation of speech because of disagreement with the message 

it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Arizona’s antiBDS Act is content-based because it singles out those who participate in boycotts against 

Israel for disfavored treatment. See Ariz. Rev. Stat. § 35-393 (defining “boycott” as 

engaging in business or “other actions” that are “intended to limit commercial relations 

with Israel”). This is akin to the Supreme Court’s rejection of a D.C. protest ordinance as 

unconstitutionally content-based: “Whether individuals may picket in front of a foreign 

embassy depends entirely upon whether their picket signs are critical of the 

foreign government or not.” Boos v. Barry, 485 U.S. 312, 319 (1988). Likewise in 

Arizona, whether invited speakers may speak on campus depends entirely upon whether 

they engage in a boycott critical of Israel, as opposed to any other government, company, 

or cause. Only anti-Israel content is targeted; such a content distinction fails First 

Amendment scrutiny.

The Act is also impermissibly speaker-based because it only bars Arizona 

contractors from boycotting Israel, while leaving unregulated all other private speakers in 

Arizona who boycott Israel. Arizona residents and businesses who do not contract with 

the State of Arizona may still boycott Israel, without censure, and regardless of the 

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economic effects of their actions. Meanwhile, the Act instructs the State to dedicate 

resources to “prepar[ing] a list of restricted companies” who the State believes are 

engaged in boycotts of Israel, and then disseminate that list “on request.” Ariz. Rev. Stat. 

§ 35-393.02(A)-(B). Arizona is thus singling out a specific set of speakers and labeling 

them as “unsound” and “unduly risky” solely on the basis of their real or suspected 

support of Palestine through Israel boycotts. See 2016 Ariz. HB 2617 § 2(E). It is plain 

that Arizona’s “speaker preference reflects a content preference” – i.e. official state 

support for Israel – and is therefore invalid. See Reed, 135 S. Ct. at 2230 (internal 

citations omitted); Bazian Decl. ¶ 15. 

The District of Kansas recently agreed that a near-identical statute violated the First 

Amendment. Examining comparable legislative history, the court there concluded that 

Kansas’s “goal is to undermine the message of those participating in a boycott of Israel. 

This is either viewpoint discrimination against the opinion that Israel mistreats 

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

goals under the First Amendment.” Koontz, 2018 U.S. Dist. LEXIS 14260 at *25. The 

same analysis governs Arizona’s proclaimed intent to prevent “economic warfare” against 

the “dynamic and innovative” nation of Israel. Az. Rev. Stat. § 35-393.03. As a facially 

viewpoint-based, content-based, and speaker-based restriction on those who support antiIsrael boycotts, the Act must be enjoined.

D. Arizona’s anti-BDS Act and “No Boycott of Israel” Clause Run Afoul of 

other First Amendment Doctrines

Arizona’s official discrimination against protected advocacy and expression is so 

egregious, it violates numerous other First Amendment doctrines beyond the viewpoint, 

content, and speaker restrictions detailed above. Plaintiffs briefly set forth the basis for 

each of these violations below.

Prior Restraint. Arizona’s anti-BDS Act and “No Boycott of Israel” clause 

constitute prior restraints on protected First Amendment activity. The purpose and effect 

of Arizona’s “No Boycott of Israel” provisions is to “weed out disfavored expression 

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before it occurs” by preemptively limiting government contractors’ advocacy and speech. 

See Forsyth 4 County, Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992).

Unconstitutional Conditions & Overbreadth. A state government cannot “coerce 

support” for its preferred “political association[s] by subjecting government contractors to 

“direct and specific abridgement[s] of First Amendment rights.” O’Hare Truck Serv. V. 

City of Northlake, 518 U.S. 712, 720 (1996). Although “governmental entities make a 

wide range of decisions in the course of contracting for goods and services,” “it does not 

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

expressing, specific political views.” Id. at 724-26. The anti-BDS Act and the “No 

Boycott of Israel” clause each impose unconstitutional conditions on government 

contractors by requiring them to cease their protected political boycotts of Israel in order 

to engage in utterly unrelated transactions with Arizona. See Agency for International 

Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013)

(holding that unconstitutional conditions “seek to leverage [state] funding to regulate 

speech outside the contours of the program itself”). As the District of Kansas just 

recognized, Kansas’s comparable anti-BDS act is unconstitutional because it “regulates 

inherently expressive conduct and forces plaintiff to accommodate [the State’s political]

message.” Koontz, 2018 U.S. Dist. LEXIS 14260 at *29.

Vagueness. Laws are unconstitutionally vague where “men of common 

intelligence must necessarily guess at [their] meaning.” Coates v. Cincinnati, 402 U.S. 

611. 614 (1971) (internal citation omitted). It is by no means clear what exact activities 

the State of Arizona intends to prohibit through its anti-Israeli-boycott provisions. 

Arizona’s definition of “boycott” encompasses more than just the conduct of an economic 

“refusal to deal” with Israel. Ariz. Rev. Stat. § 35-393. The definition also contains a 

catch-all against “performing other actions that are intended to limit commercial relations 

with Israel...in compliance with or adherence to calls for a boycott of Israel.” Id. Such 

“other actions” pursuant to “calls for a boycott of Israel” could easily encompass pure 

political advocacy seeking to inform others about the Boycott, Divestment and Sanctions 

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movement as a step to persuading others to economically boycott Israel. Indeed, a 

separate section of the Act forbids state entities from adopting any “procurement, 

investment or other policy that has the effect of inducing ... a person ... to boycott Israel.” 

Ariz. Rev. Stat. § 35-393.01(B). The standard dictionary definition of “induce” is to 

“succeed in persuading or leading (someone) to do something.” See Induce, OXFORD 

LIVING DICTIONARIES, available at https://en.oxforddictionaries.com/definition/induce

(emphasis added). A reasonable person would view Arizona’s prohibitions on 

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

“inducing ... a person ... to boycott Israel” as targeting peaceful Boycott, Divestment, and

Sanctions advocacy.

The State has attempted to limit the above “boycott” definition as only 

encompassing a narrow range of conduct: “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.” See Jordahl v. Brnovich, No. 3:17-cv-08263 (D. Ariz), Dkt. 

28 (AZ Opp. Br. to PI) at 8-9. The State claims that general decisions to not work with 

specific Israeli companies, or “partial” boycotts of some but not all Israeli economic 

activity, fall outside the Act’s scope. See id.

The State’s attempted definition is useless and does not cure the vagueness 

deficiency. The State has simultaneously indicated that Plaintiffs’ participation in the

“Boycott, Divestment, and Sanctions” movement, which “advocate[s] complete or nearcomplete boycotts of all Israeli companies,” is “squarely addressed” by the Act. See 

Jordahl, Dkt. 28 at 1, 9. Arizona specifically identifies the “BDS” movement alongside 

“anti-Jewish animus” and refusing to conduct business with all Israelis, as the Act’s 

intended scope. Id. at 12-13. These attempted distinctions mean that Arizona might

consider a contractor’s consumer boycott against the Israeli company SodaStream alone

to be permissible, whereas a boycott against all Israeli companies would be verboten, 

even if both actions were substantively grounded in the BDS movement and protesting 

perceived maltreatment of Palestinians. See Herzallah Decl. ¶ 4. The State’s 

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characterizations of the BDS movement are themselves non-sensical: Plaintiffs do not 

boycott Israeli companies “solely because” they are Israeli, they boycott Israeli companies 

which support the maltreatment of Palestinians because specific demands for Palestinian 

justice have not yet been politically met. See Bazian Decl. ¶ 4-11, 14; Herzallah Decl. ¶¶ 

3-5, 9. 

Arizona’s incongruous interpretations of the Act heighten rather than reduce the 

vagueness problem. The “BDS” movement is not a monolith with a single agenda, and it 

welcomes multiple and varied forms of economic protest against Israel. See Bazian Decl. 

¶ 8. The State’s attempted fine-toothed distinctions to save the Act provide little comfort 

to Plaintiffs, or to any potential Arizona contractor presented with simple “No Boycott of 

Israel” clauses. The vagueness of § 35-393, et seq. and ASU’s “No Boycott of Israel” 

clause operates to chills free speech, expression, and association. They must be enjoined.

E. Arizona’s anti-BDS Act and “No Boycott of Israel” Clause are not 

Narrowly Tailored to Fulfill Compelling Governmental Interests

The multitude of First Amendment ills inflicted by Arizona’s anti-BDS Act and 

“No Boycott of Israel” clause can only be overcome if Arizona satisfies strict scrutiny. 

See, e.g., Reed, 135 S. Ct. at 2226. Strict scrutiny requires Arizona to prove that its 

speech restrictions “are narrowly tailored to serve compelling state interests.” Id. 

Defendants cannot meet that standard. 

Although Arizona has elsewhere claimed a compelling interest in combatting 

economic discrimination on the basis of national origin, Jordahl, Dkt. 28 at 23-24, this 

lacks credibility. The Act does not prohibit all economic boycotts based on national 

origin, it only prohibits boycotts against Israel. Ariz. Rev. Stat. § 35-393. Arizona 

contractors remain free, for example, to economically boycott Palestine – or Syria, 

Lebanon, Jordan, or Egypt. Arizona’s statutory “Israel” qualification proves that the 

regulation is not an effective anti-discrimination measure, but rather is impermissibly 

content-based.

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Moreover, if Arizona truly sought to prohibit discrimination based on national 

origin in the economic activity of the state, it would have extended the prohibition to all 

resident boycotters, not just government contractors. It is black-letter First Amendment 

doctrine that a “law cannot be regarded as protecting an interest of the highest order, and 

thus as justifying a restriction on [protected] speech, when it leaves appreciable damage to 

that supposedly vital interest unprohibited.” Reed, 135 S. Ct. at 2232 (internal citations 

omitted). Instead of precluding all anti-Israel “discrimination,” Arizona has taken the 

opposite approach. Arizona only prohibits “discrimination” by contractors, and even 

within those contractors Arizona makes untenable distinctions. See, e.g., Ariz. Rev. Stat. 

§ 35-393.02(G) (“This section does not apply to investments that are made by the State 

Treasurer pursuant to Section 35-314.01.”) Arizona’s efforts to cabin in and backpedal 

from the vague and expansive scope of its supposedly vital law cannot write around the 

Act’s facial First Amendment invalidity. 

III. THE REMAINING PRELIMINARY INJUNCTION FACTORS WEIGH IN 

FAVOR OF ENJOINING ENFORCEMENT OF THE ANTI-BDS LAW AND 

“NO BOYCOTT OF ISRAEL” CLAUSE

After demonstrating either a likelihood of success on the merits or a serious 

question going to the merits, the party seeking a preliminary injunction must show that (a) 

it is likely to suffer irreparable harm in the absence of preliminary relief, (b) the balance of 

equities tips in his favor, and (c) a preliminary injunction is in the public interest. E.g., 

Arc of California, 757 F.3d at 983. Because each factor clearly favors Plaintiffs, an 

injunction against enforcement of the anti-BDS Act and “No Boycott of Israel” clause is 

appropriate, in order to allow Plaintiffs’ participation in the Muslim Students 

Association’s April 3, 2018 educational event to proceed.

Irreparable Harm. The “loss of First Amendment freedoms, for even minimal 

amounts of time, unquestionably constitutes irreparable injury.” Valle Del Sol Inc. v. 

Whiting, 709 F.3d 808, 828 (9th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 

(1976) (plurality opinion)). Plaintiffs are vocal advocates for Palestinian justice who 

support the Boycott, Divestment, and Sanctions movement. Bazian Decl. ¶ 14; Herzallah 

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Decl. ¶ 8. Pursuant to Arizona law, Plaintiffs are now forbidden from both participating in 

and advocating for a political cause they believe in, while also signing any contract with 

the State of Arizona. It is only because of the Act and the “No Boycott of Israel” clause 

that Plaintiffs are unable to satisfy ASU’s outside speaker requirements for student events. 

Bazian Decl. ¶ 16; Herzallah Decl. ¶ 8. Absent relief from this Court, Plaintiffs will be 

barred from attending the April 3, 2018 event due to their participation in and advocacy 

for economic boycotts of Israel. This constitutes irreparable harm, and warrants an 

injunction declaring the “No Boycott of Israel” clause unenforceable and the Act void.

Balance of the Equities. The scales of equity sharply tip in favor of upholding 

fundamental First Amendment values. See Klein v. City of San Clemente, 584 F.3d 1196, 

1208 (9th Cir. 2008). When the balance of equities “tips sharply” in the plaintiff’s 

favor—as it does here—an injunction is proper. Planned Parenthood Arizona, Inc. v. 

Humble, 753 F.3d 905, 911 (9th Cir. 2014); M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 

2012); Alliance for the Wild Rockies, 632 F.3d at 1135.

The balancing of equities must account for the relative imposition of burdens on 

the parties. Absent an injunction, Plaintiffs will be unable to exercise their First 

Amendment rights and speak at an educational event in the near future: on April 3, 2018. 

By contrast, Defendants will experience no adverse effects from permitting the event to go 

forward. Defendants permit a multitude of student events with outside speakers to occur 

regularly on campus, including on the subjects of Israel and Palestine, and this event is not 

categorically different. See Abbas Decl. ¶¶ 4-8, Ex. C-G. A preliminary injunction will 

simply restore Defendants’ campus speaker policy to the pre-2016 status quo. Moreover, 

Defendants’ lone objection to Plaintiffs’ presentation is centered around the anti-Israeli 

viewpoint of the speakers. The failure to enforce the “No Boycott of Israel” clause cannot 

impose a constitutionally cognizable burden on Defendants because it is an impermissible 

basis for distinction in the first place.

Public Interest. There is a “significant public interest in upholding First 

Amendment principles.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1129 (9th Cir. 

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2011). Permitting Plaintiffs to sign Arizona’s standard speaker agreement, with the “No 

Boycott of Israel” clause stricken, serves the “public interest in upholding free speech and 

association rights,” Farris v. Seabrook, 677 F.3d 858, 868 (9th Cir. 2012).

CONCLUSION

The Court should declare Ariz. Rev. Stat. § 35-393 unconstitutional and 

unenforceable as facially inconsistent with the Free Speech Clause of the First Amendment. 

The Court should further strike the “No Boycott of Israel” clause from Plaintiffs’ 

contemplated speaker contracts with the Arizona Board of Regents and Arizona State 

University, thereby permitting them to participate in the April 3, 2018 campus event on the 

Boycott, Divestment, and Sanctions movement.

RELIEF REQUESTED

WHEREFORE, for the reasons stated above, Plaintiffs respectfully request this 

Honorable Court GRANT their Application for Preliminary Injunctive Relief, and grant 

costs, attorneys’ fees, and all such other relief to which Plaintiffs are entitled.

Dated: March 2, 2018 CAIR LEGAL DEFENSE FUND

By /s/ Lena F. Masri 

 Lena F. Masri (D.C. Bar No. 100019)

 (seeking pro hac vice admission)

 Gadeir I. Abbas (VA Bar No. 81161)* 

 (seeking pro hac vice admission)

 Carolyn M. Homer (D.C. Bar No. 1049145)

 (seeking pro hac vice admission)

 453 New Jersey Ave., SE

 Washington, DC 20003

Phone: (202) 742-6420

Fax: (202) 379-3317

* Licensed in VA, not in D.C.

Practice limited to federal matters

 

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KELLY / WARNER, PLLC

By /s/Raees Mohamed 

 Raees Mohamed, Esq. (AZ Bar # 027418)

 8283 N. Hayden Road, Suite 229

 Scottsdale, Arizona 85258

 Phone: (480) 331-9397

 Fax: (866) 961-4984 

 Attorneys for Plaintiffs

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APPENDIX

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REFERENCE TITLE: Israel; boycotts; contracts; investments

State of Arizona 

House of Representatives 

Fifty-second Legislature 

Second Regular Session 

2016 

HB 2617 

Introduced by 

Representatives Gowan, Allen J, Barton, Borrelli, Bowers, Boyer, Cardenas, 

Cobb, Fann, Finchem, Gray, Kern, Livingston, Mitchell, Montenegro, Olson, 

Saldate, Stevens, Thorpe, Senators Barto, Begay, Dial, Driggs, Kavanagh: 

Representatives Brophy McGee, Campbell, Carter, Coleman, Espinoza, 

Lawrence, Leach, Mesnard, Norgaard, Petersen, Rios, Rivero, Shope, 

Townsend, Weninger, Senators Donahue, Lesko, Shooter 

AN ACT 

AMENDING TITLE 35, CHAPTER 2, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 9; 

RELATING TO PUBLIC CONTRACTS AND INVESTMENTS. 

(TEXT OF BILL BEGINS ON NEXT PAGE) 

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HB 2617 

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1 Be it enacted by the Legislature of the State of Arizona: 

2 Section 1. Title 35, chapter 2, Arizona Revised Statutes, is amended 

3 by adding article 9, to read: 

4 ARTICLE 9. ISRAEL BOYCOTT DIVESTMENTS 

5 35-393. Definitions 

6 IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES: 

7 1. "BOARD" MEANS THE STATE BOARD OF INVESTMENT ESTABLISHED BY SECTION 

8 35-311. 

9 2. "BOYCOTT" MEANS ENGAGING IN A REFUSAL TO DEAL, TERMINATING BUSINESS 

10 ACTIVITIES OR PERFORMING OTHER ACTIONS THAT ARE INTENDED TO LIMIT COMMERCIAL 

11 RELATIONS WITH ISRAEL OR WITH PERSONS OR ENTITIES DOING BUSINESS IN ISRAEL OR 

12 IN TERRITORIES CONTROLLED BY ISRAEL, IF THOSE ACTIONS ARE TAKEN EITHER: 

13 (a) IN COMPLIANCE WITH OR ADHERENCE TO CALLS FOR A BOYCOTT OF ISRAEL 

14 OTHER THAN THOSE BOYCOTTS TO WHICH 50 UNITED STATES CODE SECTION 4607(c) 

15 APPLIES. 

16 (b) IN A MANNER THAT DISCRIMINATES ON THE BASIS OF NATIONALITY, 

17 NATIONAL ORIGIN OR RELIGION AND THAT IS NOT BASED ON A VALID BUSINESS REASON. 

18 3. "COMPANY" MEANS A SOLE PROPRIETORSHIP, ORGANIZATION, ASSOCIATION, 

19 CORPORATION, PARTNERSHIP, JOINT VENTURE, LIMITED PARTNERSHIP, LIMITED 

20 LIABILITY PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY OR BUSINESS 

21 ASSOCIATION, AND INCLUDES A WHOLLY OWNED SUBSIDIARY, MAJORITY-OWNED 

22 SUBSIDIARY, PARENT COMPANY OR AFFILIATE. 

23 4. "DIRECT HOLDINGS" MEANS ALL PUBLICLY TRADED SECURITIES OF A COMPANY 

24 THAT ARE HELD DIRECTLY BY THE STATE TREASURER OR A RETIREMENT SYSTEM IN AN 

25 ACTIVELY MANAGED ACCOUNT OR FUND IN WHICH THE RETIREMENT SYSTEM OWNS ALL 

26 SHARES OR INTERESTS. 

27 5. "INDIRECT HOLDINGS" MEANS ALL SECURITIES OF A COMPANY THAT ARE HELD 

28 IN AN ACCOUNT OR FUND, INCLUDING A MUTUAL FUND, THAT IS MANAGED BY ONE OR 

29 MORE PERSONS WHO ARE NOT EMPLOYED BY THE STATE TREASURER OR A RETIREMENT 

30 SYSTEM, IF THE STATE TREASURER OR RETIREMENT SYSTEM OWNS SHARES OR INTERESTS 

31 EITHER: 

32 (a) TOGETHER WITH OTHER INVESTORS THAT ARE NOT SUBJECT TO THIS 

33 SECTION. 

34 (b) THAT ARE HELD IN AN INDEX FUND. 

35 6. "PUBLIC ENTITY" MEANS THIS STATE, A POLITICAL SUBDIVISION OF THIS 

36 STATE OR AN AGENCY, BOARD, COMMISSION OR DEPARTMENT OF THIS STATE OR A 

37 POLITICAL SUBDIVISION OF THIS STATE. 

38 7. "RESTRICTED COMPANIES" MEANS COMPANIES THAT BOYCOTT ISRAEL. 

39 8. "RETIREMENT SYSTEM" MEANS A RETIREMENT PLAN OR SYSTEM THAT IS 

40 ESTABLISHED BY OR PURSUANT TO TITLE 38. 

41 35-393.01. Contracting; prohibition; exceptions

42 A. A PUBLIC ENTITY MAY NOT ENTER INTO A CONTRACT WITH A COMPANY TO 

43 ACQUIRE OR DISPOSE OF SERVICES, SUPPLIES, INFORMATION TECHNOLOGY OR 

44 CONSTRUCTION UNLESS THE CONTRACT INCLUDES A WRITTEN CERTIFICATION THAT THE 

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HB 2617 

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1 COMPANY IS NOT CURRENTLY ENGAGED IN, AND AGREES FOR THE DURATION OF THE 

2 CONTRACT TO NOT ENGAGE IN, A BOYCOTT OF ISRAEL. 

3 B. THIS SECTION DOES NOT APPLY IF EITHER: 

4 1. THE COMPANY OFFERS TO PROVIDE THE SERVICES, SUPPLIES, INFORMATION 

5 TECHNOLOGY OR CONSTRUCTION FOR AT LEAST TWENTY PERCENT LESS THAN EACH OTHER 

6 QUALIFIED COMPANY. 

7 2. THE CONTRACT HAS A TOTAL POTENTIAL VALUE OF LESS THAN ONE THOUSAND 

8 DOLLARS. 

9 35-393.02. Investment; restricted companies list; notice; 

10 immunity

11 A. ON OR BEFORE APRIL 1 OF EACH YEAR, THE BOARD SHALL PREPARE A LIST 

12 OF RESTRICTED COMPANIES AND SHALL DISTRIBUTE THE LIST TO THE STATE TREASURER 

13 AND EACH RETIREMENT SYSTEM. 

14 B. IN PREPARING THE LIST OF RESTRICTED COMPANIES, THE BOARD MAY 

15 CONSIDER AT LEAST THE FOLLOWING: 

16 1. PUBLICLY AVAILABLE INFORMATION, INCLUDING INFORMATION PROVIDED BY 

17 NONPROFIT ORGANIZATIONS, RESEARCH FIRMS AND GOVERNMENT ENTITIES. 

18 2. INFORMATION PREPARED BY AN INDEPENDENT RESEARCH FIRM RETAINED BY 

19 THE BOARD. 

20 3. A STATEMENT BY A COMPANY THAT IT IS PARTICIPATING IN A BOYCOTT OF 

21 ISRAEL OR THAT IT HAS TAKEN A BOYCOTT ACTION AT THE REQUEST OF, IN COMPLIANCE 

22 WITH OR IN FURTHERANCE OF CALLS FOR A BOYCOTT OF ISRAEL. 

23 C. THE BOARD SHALL NOTIFY EACH COMPANY THAT IS INCLUDED ON THE LIST OF 

24 RESTRICTED COMPANIES THAT THE COMPANY IS SUBJECT TO DIVESTMENT BY THE STATE 

25 TREASURER AND THE RETIREMENT SYSTEMS. 

26 D. IF A COMPANY THAT RECEIVES NOTICE PURSUANT TO SUBSECTION C OF THIS 

27 SECTION SUBMITS A WRITTEN CERTIFICATION TO THE BOARD THAT IT HAS CEASED ITS 

28 BOYCOTT OF ISRAEL AND WILL NOT ENGAGE IN A BOYCOTT OF ISRAEL FOR THE PERIOD 

29 OF TIME THAT THE STATE TREASURER OR A RETIREMENT SYSTEM INVESTS IN THE 

30 COMPANY, THE BOARD SHALL: 

31 1. REMOVE THE COMPANY FROM THE RESTRICTED LIST. 

32 2. NOTIFY THE STATE TREASURER AND THE RETIREMENT SYSTEMS WITHIN TEN 

33 BUSINESS DAYS AFTER RECEIPT OF THE WRITTEN CERTIFICATION OF THE REMOVAL. 

34 E. THE STATE TREASURER AND EACH RETIREMENT SYSTEM SHALL: 

35 1. SELL, REDEEM, DIVEST OR WITHDRAW ALL DIRECT HOLDINGS OF A 

36 RESTRICTED COMPANY FROM THE ASSETS UNDER THEIR MANAGEMENT IN AN ORDERLY AND 

37 FIDUCIALLY RESPONSIBLE MANNER WITHIN THREE MONTHS AFTER RECEIVING THE LIST OF 

38 RESTRICTED COMPANIES PURSUANT TO SUBSECTION A OF THIS SECTION. ON OR BEFORE 

39 AUGUST 1 OF EACH YEAR, THE STATE TREASURER AND EACH RETIREMENT SYSTEM SHALL 

40 NOTIFY THE BOARD REGARDING INVESTMENTS THAT ARE SOLD, REDEEMED, DIVESTED OR 

41 WITHDRAWN PURSUANT TO THIS PARAGRAPH. 

42 2. NOT ACQUIRE SECURITIES OF A RESTRICTED COMPANY AS PART OF THEIR 

43 DIRECT HOLDINGS. 

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HB 2617 

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1 3. REQUEST THAT MANAGERS OF THEIR INDIRECT HOLDINGS CONSIDER SELLING, 

2 REDEEMING, DIVESTING OR WITHDRAWING HOLDINGS OF A RESTRICTED COMPANY FROM THE 

3 ASSETS UNDER THEIR MANAGEMENT. 

4 F. WITH RESPECT TO ANY ACTION PERFORMED PURSUANT TO THIS SECTION, THE 

5 BOARD, THE STATE TREASURER, EACH RETIREMENT SYSTEM AND ANY PERSON ACTING ON 

6 BEHALF OF THE BOARD, THE STATE TREASURER OR THE RETIREMENT SYSTEM: 

7 1. ARE EXEMPT FROM ANY CONFLICTING STATUTORY OR COMMON LAW OBLIGATION 

8 OR FIDUCIARY DUTIES WITH RESPECT TO CHOICE OF ASSET MANAGERS, INVESTMENT 

9 FUNDS OR INVESTMENTS. 

10 2. ARE SUBJECT TO TITLE 12, CHAPTER 7, ARTICLE 2 REGARDING IMMUNITY 

11 FOR ACTS AND OMISSIONS. 

12 3. ARE INDEMNIFIED AND HELD HARMLESS BY THIS STATE FROM CLAIMS, 

13 DEMANDS, SUITS, ACTIONS, DAMAGES, JUDGMENTS, COSTS, CHARGES AND EXPENSES, 

14 INCLUDING ATTORNEY FEES, AND AGAINST ALL LIABILITY, LOSSES AND DAMAGES 

15 BECAUSE OF A DECISION TO SELL, REDEEM, DIVEST OR WITHDRAW HOLDINGS OF A 

16 RESTRICTED COMPANY MADE PURSUANT TO THIS SECTION. 

17 35-393.03. Severability

18 IF ANY PROVISION OF THIS ARTICLE OR ITS APPLICATION TO ANY PERSON OR 

19 CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY DOES NOT AFFECT ANY OTHER 

20 PROVISION OR APPLICATION OF THIS ARTICLE THAT CAN BE GIVEN EFFECT WITHOUT THE 

21 INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS 

22 ARTICLE ARE SEVERABLE. 

23 Sec. 2. Legislative findings 

24 A. Boycotts and related tactics have become a tool of economic warfare 

25 that threaten the sovereignty and security of key allies and trade partners 

26 of the United States. 

27 B. The state of Israel is the most prominent target of such boycott 

28 activity, beginning with the Arab League Boycott adopted in 1945, even before 

29 Israel's declaration of independence as the reestablished national state of 

30 the Jewish people. 

31 C. Companies that refuse to deal with United States trade partners 

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

33 discriminatory decisions on the basis of national origin that impair those 

34 companies' commercial soundness. 

35 D. It is the public policy of the United States, as enshrined in 

36 several federal acts, including 50 United States Code section 4607, to oppose 

37 such boycotts, and Congress has concluded as a matter of national trade 

38 policy that cooperation with Israel materially benefits United States 

39 companies and improves American competitiveness. 

40 E. Israel in particular is known for its dynamic and innovative 

41 approach in many business sectors, and a company's decision to discriminate 

42 against Israel, Israeli entities or entities that do business with Israel or 

43 in Israel is an unsound business practice making the company an unduly risky 

44 contracting partner or vehicle for investment. 

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HB 2617 

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1 F. This state seeks to implement Congress's announced policy of 

2 "examining a company's promotion or compliance with unsanctioned boycotts, 

3 divestment from, or sanctions against Israel as part of its consideration in 

4 awarding grants and contracts and supports the divestment of State assets 

5 from companies that support or promote actions to boycott, divest from, or 

6 sanction Israel." 

Case 2:18-cv-00670-JJT Document 9-1 Filed 03/02/18 Page 27 of 27