OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CAIR LEGAL DEFENSE FUND

Lena F. Masri (D.C. Bar # 1000019) (pro hac vice)

Email: lmasri@cair.com

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

Email: gabbas@cair.com

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

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 Board of Regents on behalf of 

Arizona State University; and Mark 

Brnovich, in his official capacity as 

Attorney General of Arizona

Defendants.

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

Plaintiffs’ Memorandum in Opposition 

to Defendants’ Motion to Dismiss

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 1 of 23
- ii -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

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

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

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

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

I. ARIZONA’S ANTI-BDS ACT AND THE ARIZONA BOARD OF REGENTS’ 

“NO BOYCOTT OF ISRAEL” CLAUSE FACIALLY VIOLATE THE FIRST 

AMENDMENT .................................................................................................................... 5

A. Support for the Boycott, Divestment, and Sanctions Movement is Protected 

Speech .............................................................................................................................. 5

B. Arizona’s anti-BDS Act Targets Specific Viewpoints........................................... 6

C. Arizona’s anti-BDS Act Targets Specific Content and Speakers........................... 7

D. The Anti-BDS Act Requires the Arizona Board of Regents to put “No Boycott of Israel Clauses” in its Contracts.................................................................................... 9

II. PLAINTIFFS’ FIRST AMENDMENT CHALLENGE TO ARIZONA’S ANTI- BDS ACT IS NOT MOOT................................................................................................. 11

A. Defendants’ Voluntary Cessation is Flimsy and Inconsistent, and Therefore 

Cannot Moot this Dispute .............................................................................................. 11

B. Plaintiffs Have Been Invited to Return to Campus and May Encounter anti-BDS 

Contract Terms Again .................................................................................................... 14

III. PLAINTIFFS HAVE STATED A SECTION 1983 CLAIM .................................. 16

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

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 2 of 23
- iii -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

Cases

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

133 S. Ct. 2321 (2013) ..................................................................................................... 8

Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013).......................................................................................... 12

Boos v. Barry, 485 U.S. 312 (1988)......................................................................................................... 7

City of Mesquite v. Aladdin’s Castle, 455 U.S. 283 (1982)....................................................................................................... 12

Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978)......................................................................................................... 17

Epona, Ltd. Liab. Co. v. Cty. of Ventura, 876 F.3d 1214 (9th Cir. 2017).................................................................................... 9, 14

Forsyth 4 County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992)......................................................................................................... 8

Friends of the Earth, Inc. v. Laidlaw Environmental Serv., 528 U. S. 167 (2000)................................................................................................ 12, 13

In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. March 14, 2013).......................................................... 5

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) ....................................................................................... 11, 15, 16

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012)....................................................................................................... 16

Koontz v. Watson,

283 F. Supp. 3d 1007 (D. Kan. Jan. 30, 2018)................................................................. 6

Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)......................................................................................................... 6

Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011)........................................................................................ 12

Los Angeles County v. Davis, 440 U.S. 625 (1979)....................................................................................................... 12

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

NAACP v. Trump, 2018 U.S. Dist. LEXIS 68589 (D.D.C. Apr. 24, 2018) ................................................. 11

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 3 of 23
- iv -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996)......................................................................................................... 8

Planned Parenthood of Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016)............................................................................ 17

Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004).......................................................................................... 17

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972)........................................................................................................... 6

Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007).................................................................................. 12, 13

Quade v. Ariz. Bd. of Regents, 700 F. App’x 623 (9th Cir. 2017) .................................................................................... 9

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ................................................................................................. 5, 8

Regents of the Univ. of Cal. v. United States, Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018) ......................................................................... 11

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

515 U.S. 819 (1995). ................................................................................................ 5, 6, 7

St. Clair v. Chico, 880 F.2d 199 (9th Cir. 1989)............................................................................................ 4

United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199 (1968)....................................................................................................... 12

Ward v. Rock Against Racism, 491 U.S. 781 (1989)......................................................................................................... 7

Constitution & Statutes

Ariz. Const. Art. XI, § 5 ....................................................................................................... 9

Ariz. Rev. Stat. § 15-1601 ................................................................................................ 2, 9

Ariz. Rev. Stat. § 15-1625 .................................................................................................... 9

Ariz. Rev. Stat. § 35-301 .................................................................................................... 17

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

U.S. CONST. Amend. I.......................................................................................................... 5

Other Authorities

Adam Steinbaugh, Arizona’s anti-BDS statute lands Arizona State University in federal 

court, FIRE (Mar. 12, 2018) available at https://www.thefire.org/arizonas-anti-bds- statute-lands-arizona-state-university-in-federal-court/................................................. 10

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 4 of 23
- v -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Policy 5-202: Associated Students, ARIZONA BOARD OF REGENTS, available at 

https://public.azregents.edu/Policy%20Manual/5-202-Associated%20Students.pdf.... 16

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 5 of 23
- 1 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

INTRODUCTION

This is a First Amendment challenge to an Arizona Act which punishes advocacy 

in support of the Boycott, Divestment and Sanctions movement. This law constitutes a 

facial violation of the First Amendment. Perhaps understanding this, the Arizona Board 

of Regents sidestepped the Act and permitted Plaintiffs to speak about the Boycott, 

Divestment and Sanctions movement on campus on April 3, 2018. However the Act 

remains in force, the Arizona Board of Regents continues to incorporate “No Boycott of 

Israel” clauses into its various university contracts, and Plaintiffs will be visiting campus 

again next academic year. Accordingly, this case remains a live controversy. Defendants’ 

Motion to Dismiss should be denied and this case should proceed to discovery and 

adjudication on the merits.

FACTUAL BACKGROUND

The relationship between Israel and Palestine is an internationally significant 

political conflict. See Complaint (“Compl.”), Dkt. 1 ¶¶ 2, 15; Preliminary Injunction 

Declaration of Dr. Hatem Bazian (“1st Bazian Decl.”), Dkt. 9-3 ¶ 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. Compl., Dkt. 1 ¶ 15; 

1st Bazian Decl., Dkt. 9-3 ¶ 4. Since 2005 the “Boycott, Divestment and Sanctions” 

movement has strived to peacefully impose international economic and cultural pressure 

on Israel, with the goal of changing Israeli policy towards Palestinians. Compl., Dkt. 1 ¶ 

17; 1st Bazian Decl., Dkt. 9-3 ¶¶ 7-8; Preliminary Injunction Declaration of Taher 

Herzallah (“1st Herzallah Decl.”), Dkt. 9-2 ¶ 3. Plaintiffs American Muslims for Palestine 

and Dr. Hatem Bazian are leaders of that movement. Compl., Dkt. 1 ¶¶ 6-7; 1st Herzallah 

Decl., Dkt. 9-2 ¶ 3; 1st Bazian Decl., Dkt. 9-3 ¶ 9.

Historically, the United States’ friendly relationship with Israel has tended to mute 

its criticism of Israel’s maltreatment of Palestinians. See Compl. ¶¶ 18; 1st Bazian Decl., 

Dkt. 9-3 ¶ 5. The United States’ prevailing political support for Israel has caused state 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 6 of 23
- 2 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

governments and public officials to oppose the Palestinian-led Boycott, Divestment, and 

Sanctions (“BDS”) movement. See Compl. ¶¶ 20-22. 

Arizona is one of the states opposed to the BDS movement. 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(A) provides: “A public entity may not enter into a contract with a 

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

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

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

boycott of Israel.” The Act also 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 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.

The Arizona Board of Regents oversees Arizona’s public universities including 

Arizona State University (“ASU”). Ariz. Rev. Stat. § 15-1601. It is a public entity 

subject to the Act. Shortly after the Act was signed in 2016, “ASU incorporated an antiboycott provision into various contract templates, including its form speaker agreement.” 

Declaration of José A. Cárdenas, Dkt. 24-1 ¶ 3; Compl., Dkt. 1 ¶ 34. The anti-boycott 

clause 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.” Cárdenas Decl., Dkt. 24-1 

¶ 3 & Ex. A; Compl., Dkt. 1 ¶ 34.

On December 13, 2017, the Arizona Board of Regents asserts that it partially 

elected to not comply with the Act: “ASU determined that the Act did not apply to 

speakers invited to speak on campus. It therefore revised the speaker form agreement to 

remove the anti-boycott provision.” Cárdenas Decl., Dkt. 24-1 ¶ 3 & Ex. B. However,

the prior version of the contract remained in circulation; the ASU Muslim Students 

Association sent a contract containing the “No Boycott of Israel” clause to Plaintiffs on

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 7 of 23
- 3 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

February 22, 2018. Compl. ¶¶ 31-34; 1st Herzallah Decl., Dkt. 9-2 ¶ 7 & Ex. A; 1st 

Bazian Decl., Dkt. 9-3 ¶ 12 & Ex. B. After this lawsuit was filed, a reporter sent 

Plaintiffs’ counsel a copy of a revised ASU Speaker/Artist/Performer Agreement the 

reporter had obtained. The revised contract omits the “No Boycott of Israel” clause and 

on its face is dated February 9, 2018. See Second Declaration of Gadeir Abbas, Ex. A. 

However, the metadata of that document says it was created by an ASU administrative 

assistant on February 22, 2018. See 2nd Abbas Decl. ¶ 2. February 22 was the same day 

the Muslim Students Association sent the version they possessed to Plaintiffs, which still 

contained a “No Boycott of Israel” clause. Compl. ¶¶ 31-34; 1st Herzallah Decl., Dkt. 9-2 

¶ 7 & Ex. A; 1st Bazian Decl., Dkt. 9-3 ¶ 12 & Ex. B. 

The “No Boycott of Israel” clause is still present in other Arizona Board of Regents

contracts. See Cárdenas Decl., Dkt. 24-1 ¶ 3. An overarching ASU form contract states 

that the “No Boycott of Israel” clause is “[r]equired in contracts to acquire or dispose of 

services, supplies, information technology, and construction.” See 2nd Abbas Decl., Ex. 

B (Arizona State University Supplemental Terms and Conditions). Thus, for example, all 

ASU vendors must still certify that do not boycott Israel. See 2nd Abbas Decl., Ex. C 

(Arizona State University Independent Contractor Agreement for Consulting, Services, 

and Deliverables).

The Arizona Board of Regents also oversees Arizona’s other public universities,

including the University of Arizona and Northern Arizona University (“NAU”). Despite 

the decision at ASU to remove the “No Boycott of Israel” clause, the Arizona Board of 

Regents has not adhered to that same action elsewhere. For example, the University of 

Arizona’s contract guidance states that “The following clauses are to be incorporated into 

all contracts: ... f) No Boycott of Israel.” 2nd Abbas Decl., Ex. D (University of Arizona 

Contracting FAQs, emphasis added). The University of Arizona classifies “speakers” 

who are “engaged by student organizations” as “entertainers” or “performers.” 2nd Abbas 

Decl., Ex. E ¶¶ 7, 30 (University of Arizona policy on Independent Contractor Services). 

As of today, May 14, 2018, both of the University of Arizona’s form contracts for outside 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 8 of 23
- 4 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

speakers contain the “No Boycott of Israel” clause. 2nd Abbas Decl., Exs. F (links to 

University of Arizona performance contracts), G (contract over $1,000), H (contract under 

$1,000). The “Standard Terms and Conditions” for Northern Arizona University 

contracts, including speaker contracts, also contain “No Boycott of Israel” clauses. 2nd 

Abbas Decl., Exs. I (contract definition), J (standard terms).

Based on its inconsistent interpretation of the Act, the Arizona Board of Regents let 

Plaintiffs speak on ASU’s campus on April 3, 2018. See Second Declaration of Taher 

Herzallah ¶ 2. The event was a success. Id. Campus events like these are a core 

component of Plaintiffs’ BDS advocacy. Id. Plaintiffs have since been re-invited by 

ASU’s Muslim Students Association to speak again next academic year. Id. ¶ 3 & Ex. A. 

Plaintiffs have also been exploring speaking at the University of Arizona on the same trip.

Id. ¶ 4. A significant roadblock, however, is the Arizona Board of Regents’ continued 

inclusion of the “No Boycott of Israel” clause in the University of Arizona’s speaker 

contracts. Id. ¶ 5; 2nd Abbas Decl. ¶¶ 8-9 & Exs. G-H.

ARGUMENT

Defendants’ Motion to Dismiss centers around mootness, rather than addressing

the merits of Plaintiffs’ First Amendment challenge to Arizona’s anti-BDS Act. This 

tactical choice is likely because Arizona’s anti-BDS Act engages in facial viewpoint and 

content discrimination and Defendants know it cannot withstand judicial scrutiny. 

Defendants’ Motion to Dismiss arises under Federal Rule of Civil Procedure 

12(b)(1), raising a factual challenge to this Court’s subject-matter jurisdiction. See 

Motion to Dismiss (“MTD”), Dkt. 24 at 4-5. It is thus “necessary for the party opposing 

the motion to present affidavits or any other evidence necessary to satisfy its burden of 

establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. 

Chico, 880 F.2d 199, 201 (9th Cir. 1989); accord, e.g., GEICO Indem. Co. v. Brown, No. 

11-cv-0025, 2011 U.S. Dist. LEXIS 70448, at *8 (D. Ariz. June 29, 2011) (denying 

motion to dismiss and finding ripeness). Plaintiffs rely on their prior preliminary 

injunction declarations, as well as proffer two additional declarations, in order to establish 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 9 of 23
- 5 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the subject-matter jurisdiction of this court.

This case continues to be a live controversy. Plaintiffs continue to experience harm 

due to Ariz. Rev. Stat. § 35-393’s requirement that public contracts and policies must 

condemn boycotts of Israel. Plaintiffs are repeat speakers at Arizona state universities.

They intend to return next academic year, and they may face a “No Boycott of Israel” 

clause again. The governing anti-BDS Act is unchanged, the Arizona Board of Regents is 

still including the clause in contracts across its three universities, and the Arizona Board 

of Regents remains free to re-insert it into ASU’s speaker contract. “The fact that the 

statute is facially deficient ... presents too great a risk of potential infringement of First 

Amendment rights” to allow the government “to side-step constitutional review by relying 

on its voluntary” non-enforcement. See, e.g., In re Nat’l Sec. Letter, 930 F. Supp. 2d 

1064, 1074 (N.D. Cal. March 14, 2013).

I. ARIZONA’S ANTI-BDS ACT AND THE ARIZONA BOARD OF

REGENTS’ “NO BOYCOTT OF ISRAEL” CLAUSE FACIALLY VIOLATE 

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). Arizona has “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). 

Arizona’s anti-BDS Act facially restricts individuals from engaging in expressive conduct 

or speech which supports boycotts of Israel. Ariz. Rev. Stat. § 35-393.01. The Act, and 

the “No Boycott of Israel” clauses implementing the Act, must be stricken as 

unconstitutional.

A. Support for the Boycott, Divestment, and Sanctions Movement is 

Protected Speech

Politically-motivated boycotts like those the Boycott, Divestment, and Sanctions 

movement encourages are fully protected speech under the First Amendment. See NAACP 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 10 of 23
- 6 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v. Claiborne Hardware Co., 458 U.S. 886, 907, 915 (1982) (upholding civil rights 

boycotts). Such activity “rest[s] on the highest rung of the hierarchy of First Amendment 

values.” Id. at 913 (internal citation omitted). As the District of Kansas recently 

recognized, BDS participants “seek to amplify their voices to influence change, as did the 

boycotters in Claiborne.” Koontz v. Watson, No. 17-cv-4099, 283 F. Supp. 3d 1007, 2018 

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

in Kansas). 

B. Arizona’s anti-BDS Act Targets Specific Viewpoints 

The Arizona Board of Regents operates three Arizona universities: Arizona State 

University, the University of Arizona, and Northern Arizona University. These 

universities permit a wide range of educational activities by a wide range of student 

organizations. Compl., Dkt. 1 ¶¶ 29-30. They thus provide limited public forums for 

speech. Rosenberger, 515 U.S. at 829. Within these forums, any “ideologically driven 

attempts to suppress a particular point of view” “are presumptively unconstitutional.” Id. 

at 830. 

Yet the anti-BDS Act and the “No Boycott of Israel” clause are both ideologically 

driven attempts to suppress the Palestinian point of view surrounding Middle East 

conflict. “Denial on that basis [is] plainly invalid” viewpoint discrimination. Lamb’s 

Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993); 

Rosenberger, 515 U.S. at 828-29; 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”). The viewpoint-discriminatory

purpose of both the Act and “No Boycott of Israel” clauses is apparent by what they do

not prohibit. University events discussing Israeli settlements in the West Bank are 

permitted so long as the speakers are neutral or identify as pro-Israeli; it is only proPalestinian participants in the BDS movement who are barred from speaking. See 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 11 of 23
- 7 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Cárdenas Decl., Dkt. 24-1 ¶ 3 & Ex. A; 2nd Abbas Decl., ¶¶ 3, 5, 8, 9, 11 & Ex. B, D, G, 

H, J (Arizona Board of Regents contract terms pertaining to speakers containing No 

Boycott of Israel clauses). 

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 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 anti-BDS 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”). 

The Act does not prohibit all economic boycotts against countries or national origins, 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 Iran. This statutory country-preference is akin to the Supreme Court’s rejection of a 

D.C. ordinance which assessed “whether individuals may picket in front of a foreign 

embassy” as entirely dependent “upon whether their picket signs are critical of the 

foreign government or not.” Boos v. Barry, 485 U.S. 312, 318-19 (1988). Arizona’s 

statutory “Israel” qualification proves that the anti-BDS Act is impermissibly contentbased.

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

contractors from boycotting Israel. Meanwhile, Arizona businesses, residents and visitors 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 12 of 23
- 8 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

who do not contract with the State of Arizona may still boycott Israel without censure. 

Singling out Government contractors in this manner is an unconstitutional condition on 

speech, a contractual term amounting to a prior restraint. The purpose and effect of 

Arizona’s anti-BDS Act is to “weed out disfavored expression 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). Arizona 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); accord Agency for International 

Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321, 2328

(2013) (holding that unconstitutional conditions “seek to leverage [state] funding to 

regulate speech outside the contours of the program itself”). It is plain that Arizona’s 

“speaker preference reflects a content preference” – i.e. support for Israel – and is 

therefore invalid. See Reed, 135 S. Ct. at 2230 (internal citations omitted).

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

Amendment. Examining comparable legislative history, the Kansas district 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, 283 F. Supp. 3d 1007, 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. 

Ariz. Rev. Stat. § 35-393.03. Arizona’s anti-BDS Act is a facially viewpoint-based, 

content-based, and speaker-based restriction on those who support anti-Israel boycotts

Facially unconstitutional laws “may have a chilling effect on protected speech 

because potential speakers may choose to self-censor rather than either acquire a 

[contract] or risk sanction for speaking without one.” Epona, Ltd. Liab. Co. v. Cty. of 

Ventura, 876 F.3d 1214, 1221 (9th Cir. 2017). Plaintiffs, as Arizona contractors engaged 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 13 of 23
- 9 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in campus speaking events, seek to eliminate that chill as to themselves and all 

contractors.

D. The Anti-BDS Act Requires the Arizona Board of Regents to put “No 

Boycott of Israel Clauses” in its Contracts

The mechanism by which the anti-BDS Act enforces its unconstitutional aims is 

through regulation of Arizona public entities. The Arizona Board of Regents is a public 

entity. Ariz. Rev. Stat. § 35-393 (definition of “public entity”); Ariz. Const. Art. XI, § 5

(establishing the Arizona Board of Regents as a state agency); Quade v. Ariz. Bd. of 

Regents, 700 F. App’x 623, 625 (9th Cir. 2017) (recognizing the Arizona Board of 

Regents as a state agency). The Arizona Board of Regents is required by law to maintain 

Arizona State University, the University of Arizona, and Northern Arizona University. 

Ariz. Rev. Stat. § 15-1601. Only the Arizona Board of Regents, and not the three 

universities themselves, has the power to enter into contracts and engage in litigation 

related to the universities. Ariz. Rev. Stat. § 15-1625. 

The anti-BDS Act imposes two principle restrictions on the Arizona Board of 

Regents. It first provides that “[a] public entity may not enter into a contract with a

company to acquire ... services ... 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.” Ariz. Rev. Stat. § 35-393.01(A). The Arizona Board of 

Regents’ form speaker contract for Arizona State University – even after its recent 

amendments – is an agreement whereby “ASU hereby engages Speaker to personally 

provide the following services,” namely, a speech. See Cárdenas Decl., Dkt. 24-1 ¶ 5 & 

Ex. C (emphasis added). 

Second, the anti-BDS Act restrains public entities from adopting any “policy that 

has the effect of inducing...a person or company to boycott Israel.” Ariz. Rev. Stat. § 35-

393.01(A). The 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. Arizona’s definition of “boycott” 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 14 of 23
- 10 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

encompasses both a “refusal to deal” with Israel and “performing other actions that are 

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

language of the anti-BDS Act therefore bars any Arizona Board of Regents policy which 

would permit campus advocacy for the Boycott, Divestment, and Sanctions movement, 

because that advocacy would be intended towards and might have the effect of persuading 

others to limit their commercial relations with Israel.

This plain language is why Arizona Board of Regents’ overarching form contract, 

known as the “Arizona State University Supplemental Terms and Conditions,” is 

annotated to “require” insertion of the “No Boycott of Israel” clause in all “contracts to 

acquire or dispose of services.” See 2nd Abbas Decl., Ex. B ¶ 25. The Foundation for 

Individual Rights in Education concurs: the “No Boycott of Israel” clause is a state law 

requirement, even for speaker contracts. See Adam Steinbaugh, Arizona’s anti-BDS 

statute lands Arizona State University in federal court, FIRE (Mar. 12, 2018) available at 

https://www.thefire.org/arizonas-anti-bds-statute-lands-arizona-state-university-in-federalcourt/. FIRE concludes “[t]he university’s hands have been tied by the state legislature.” 

Id. 

Defendants insist that they have agreed amongst themselves that the anti-BDS Act 

does not legally apply to university speakers. See MTD, Dkt. 24 at 1, 4. But Defendants 

have not even applied their implausible interpretation to all Arizona public universities, 

leaving in place requirements that all University of Arizona and Northern Arizona 

University contracts—including student group negotiated speaker agreements—contain

the anti-BDS provision. See 2nd Abbas Decl., Exs. D, G, H, J. Furthermore, except a 

cross reference to a prior motion, Defendants’ brief offers no legal basis as to how or why 

they reached that interpretative decision, how that interpretative decision only covers ASU 

speaker agreements and not other ASU contracts, or how or why they had previously 

decided to include the anti-BDS provision. See MTD, Dkt. 24 at 9 (citing Dkt. 17 at 3). 

Defendants’ position appears to fully rely upon a conveniently narrow and unlikely

definition of the word “services.” See Dkt. 17 at 3 (arguing “this type of guest speech is 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 15 of 23
- 11 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

not a provision of ‘services’ within the meaning of the Act”). Just as professors who 

lecture provide educational “services” to ASU’s students, guest speakers who present 

information to students likewise provide “services” within the meaning of the anti-BDS 

Act. Even the current ASU speaker contract makes clear that speakers provide “services.” 

See Cárdenas Decl., Dkt. 24-1 ¶ 5 & Ex. C. Defendants’ motion does not and cannot 

explain how a contract “engage[ing] Speaker to personally provide the following 

services” is not a contract for “services” within the meaning of the anti BDS-Act. 

Compare Cárdenas Decl., Dkt. 24-1 ¶ 5 & Ex. C with Ariz. Rev. Stat. § 35-393.01(A). 

Nor do Defendants deny that their current legal interpretation is subject to change. 

Whatever the basis of Defendants’ decision to amend ASU’s speaker contract and 

attempt to moot out this case’s claims, binding interpretations of the law are the province 

of courts and not Defendants’ internal agreements. Ultimately, whether the anti-BDS Act 

legally applies to university contracts with outside speakers is a question only this Court 

can resolve. See, e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 

(2016) (holding that federal agency lacked discretion to skip over mandatory statute 

related to small business contracting). Cf. e.g., Regents of the Univ. of Cal. v. United 

States, Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1037-1043 (N.D. Cal. 2018)

(explaining that federal agency’s reversal of its own interpretation of a statute reflected a 

“flawed legal premise”); NAACP v. Trump, 2018 U.S. Dist. LEXIS 68589 at *92 (D.D.C. 

Apr. 24, 2018) (“The cases are clear that courts have the authority to review an agency’s 

interpretation of the law if it is relied on to justify an enforcement policy.”).

II. PLAINTIFFS’ FIRST AMENDMENT CHALLENGE TO ARIZONA’S 

ANTI-BDS ACT IS NOT MOOT

A. Defendants’ Voluntary Cessation is Flimsy and Inconsistent, and 

Therefore Cannot Moot this Dispute

Defendants cannot carry their heavy burden of demonstrating this case is moot. “It 

has long been established that the ‘mere voluntary cessation of allegedly illegal conduct 

does not moot a case; if it did, the courts would be compelled to leave the defendant . . . 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 16 of 23
- 12 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

free to return to his old ways.’” Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007)

(quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 

(1968)) (cleaned up). Even though the Arizona Board of Regents contends that it has 

“ceased the complained-of conduct,” mootness is inappropriate unless it is “absolutely 

clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. 

(citing Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)); accord Friends of the 

Earth, Inc. v. Laidlaw Environmental Serv., 528 U. S. 167, 190 (2000).

A government agency’s discretionary non-enforcement of binding law does not 

make it “absolutely clear” that the agency will not later reverse course. See Porter, 496 

F.3d at 1017 (holding that First Amendment dispute had not been mooted by agency letter 

avowing non-enforcement, particularly since the new administration could reverse course 

at any time). Absolute clarity typically requires a formal legislative change – i.e. the 

expiration, repeal, or material amendment of a statute. Bell v. City of Boise, 709 F.3d 890, 

898-99 (9th Cir. 2013). Defendants’ lead case is inapposite because it features the repeal 

of the challenged statute. See, e.g., Log Cabin Republicans v. United States, 658 F.3d 

1162, 1166 (9th Cir. 2011) (Congress repealed Don’t Ask Don’t Tell during pendency of 

appeal). Here, Arizona’s anti-BDS statute – the root of Plaintiffs’ continuing First 

Amendment harm – remains untouched. See Ariz. Rev. Stat. § 35-393 et seq. 

By contrast, voluntary and discretionary changes to contracts, licenses, or even 

local ordinances are insufficient guarantees that the government has permanently reversed 

course. See Bell, 709 F.3d at 899. (informal policy change did not moot controversy); 

accord City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289 (1982) (dispute not moot 

where only the lower court judgment prevented city from reenacting the ordinance); 

Friends of the Earth, 528 U.S. at 189 (Defendant’s shutdown of a polluting plant did not 

moot controversy, in part because operation permit was still active); Porter, 496 F.3d at

1017-18 (letter to legislature promising non-enforcement did not moot prior threat of 

prosecution). 

The potential for inconsistency is evident in light of the Arizona Board of Regents’ 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 17 of 23
- 13 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

own wild variance. Arizona State University incorporated the “No Boycott of Israel” 

clause into its speaker contracts for more than a year. Cárdenas Decl., Dkt. 24-1 ¶ 3, Ex. 

A & B. Arizona State University then suddenly eliminated the clause only one week after 

the American Civil Liberties Union filed the first constitutional challenge to the anti-BDS 

Act. Compare Cárdenas Decl., Dkt. 24-1 ¶ 4, Ex. B (Dec. 13, 2017) with Jordahl v. 

Brnovich, No. 17-cv-8263, Dkt. 1 (D. Ariz. Dec. 6, 2017) (cited by MTD, Dkt. 24 at 9). 

The old contract version containing the No Boycott of Israel clause remained in 

circulation and in use by student groups at least until February 2018 when Plaintiffs 

received their invitations. Compl. ¶¶ 31-34; 1st Herzallah Decl., Dkt. 9-2 ¶ 7 & Ex. A; 1st 

Bazian Decl., Dkt. 9-3 ¶ 12 & Ex. B. And other ASU contracts continue to incorporate 

the No Boycott of Israel clause, including in ASU’s form instructions requiring insertion 

of the clause into any contract for services. 2nd Abbas Decl., Exs. B-C.

Meanwhile, as of the day of this filing, the Arizona Board of Regents has taken no 

action to remove the No Boycott of Israel Clause from its other university contracts, 

including the speaker contracts in force at the University of Arizona and Northern Arizona 

University. See 2nd Abbas Decl., Exs. D, G, H, J. With respect to the University of 

Arizona, the Arizona Board of Regents has taken no action to amend its form speaker 

contracts. Rather, the University of Arizona proclaims that the “No Boycott of Israel” 

clause must “be incorporated into all contracts.” 2nd Abbas Decl., Ex. D (emphasis 

added). Both of the University of Arizona contracts that apply to student-invited speakers 

provide: “As required by ARS §§ 35-393 to 35-393.01, Performer 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.” 2nd Abbas Decl., Exs. G-H.

Northern Arizona University also appears to be enforcing Ariz. Rev. Stat. § 35-393

as to speakers. Although the exact form contract for speakers appears to only be 

accessible to those with a university login, there is no public indication that NAU has 

removed the “No Boycott of Israel” clause. Rather, NAU’s Contracting, Purchasing and 

Risk Management department provides public information on its standard contractual 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 18 of 23
- 14 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

terms. It describes “[t]ypical standard NAU contracts [as] contracts for facility use, 

consulting and performers...These contracts have all the terms and conditions required for 

compliance with state regulations.” 2nd Abbas Decl., Ex. I. The contracting page then 

links to NAU’s “standard terms and conditions,” including a “Participation in Boycott of 

Israel” clause. 2nd Abbas Decl. ¶¶ 10-11 & Exs. I, J ¶ 56. “Pursuant to Arizona Revised 

Statute §§ 35-393 and 35-393.01, Offeror certifies that it is not currently engaged in and 

agrees, for the duration of the Contract, to not engage in a Boycott of Israel.” 2nd Abbas 

Decl. ¶ 11 & Ex. J ¶ 56. 

Defendant Arizona Board of Regents is a unitary entity governing Arizona State 

University, the University of Arizona, and Northern Arizona University. Ariz. Rev. Stat. 

§ 15-1601. Yet it is only at Arizona State University – the site of Plaintiffs’ campus BDS 

event – that the Arizona Board of Regents has decided state law does not require inclusion 

of the “No Boycott of Israel” clause, and even then it only exempts speakers. Defendant’s 

inconsistent legal conduct reeks of voluntary cessation.

At best, Arizona’s contractual scheme surrounding anti-BDS Act compliance 

“lack[s] clear standards.” Epona, 876 F.3d at 1221. As presented, the Arizona Board of 

Regents is in effect claiming an “unbridled direction to grant or revoke” contracts with “No 

Boycott of Israel” clauses. See id. Given the facial free speech violations implicit in No 

Boycott of Israel clauses and the anti-BDS Act as a whole, the Arizona Board of Regents’ 

conduct poses a “real and substantial threat of censorship.” Id. at 1221 (cleaned up).

B. Plaintiffs Have Been Invited to Return to Campus and May Encounter 

anti-BDS Contract Terms Again

Defendants separately argue this dispute is moot because the April 3, 2018 event 

has already happened. MTD, Dkt. 24 at 1, 5-6. Plaintiffs’ dispute is not moot because, as 

evidenced by the Arizona Board of Regents’ inconsistent and discretionary conduct, it is 

not absolutely clear Plaintiffs will not encounter the No Boycott of Israel clause on their 

next visit to Arizona. 

Prior to the April 3, 2018 event at Arizona State University, Dr. Hatem Bazian had 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 19 of 23
- 15 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

previously spoken at both ASU and the University of Arizona. 1st Bazian Decl., Dkt. 9-2 

¶ 11. Mr. Taher Herzallah had also previously visited ASU as a student participant in a 

Palestine event. 1st Herzallah Decl., Dkt. 9-3 ¶¶ 6, 9-10. He remains in contact with 

current ASU students as the Associate Direct of Outreach & Community Organizing for 

American Muslims for Palestine. See id. ¶ 2. Due to the success of the April 3, 2018 

event, Dr. Bazian and AMP have been invited to return to ASU next year. 2nd Herzallah 

Decl. ¶ 3 & Ex. A. They are also exploring opportunities to speak at the University of 

Arizona on the same trip. 2nd Herzallah Decl. ¶ 4. Accordingly, the Arizona Board of 

Regents’ compliance with the anti-BDS Act, through university contractual terms, 

remains a live controversy with continuing First Amendment harm to Plaintiffs.

The repetitive cycle of short-term speaker contracts across Arizona 

universities also qualifies under the “capable of repetition, yet evading review” 

exception to mootness. See, e.g., Kingdomware, 136 S. Ct. at 1976 (finding dispute 

not moot and proceeding to strike down agency’s short-term contract practice on 

the merits). So long as the anti-BDS Act exists, it will require the Arizona Board of 

Regents to incorporate “No Boycott of Israel” clause. See Section I-D, supra.

Plaintiffs have a reasonable expectation of encountering Arizona’s mandatory “No 

Boycott of Israel” contractual terms again, yet each individual speaking 

engagement may be of too short duration to challenge. The Supreme Court has 

recognized that courts have jurisdiction when “the same legal issue in this case is 

likely to recur in future controversies between the same parties in circumstances 

where the period of contract performance is too short to allow full judicial review 

before performance is complete.” Kingdomware, 136 S. Ct. at 1976.

“A case becomes moot only when it is impossible for a court to grant any effectual

relief whatever to the prevailing party.... As long as the parties have a concrete interest, 

however small, in the outcome of the litigation, the case is not moot.” Knox v. SEIU, 

Local 1000, 567 U.S. 298, 307-08 (2012) (cleaned up). The case is not moot because 

there is still effectual relief this Court can award. Plaintiffs are leaders of the BDS 

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 20 of 23
- 16 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

movement; they are not engaged in a mere “pretense to challenge the Act.” Contra MTD, 

Dkt. 24 at 1. Rather, they face continuing state-imposed roadblocks aimed directly at 

their Boycott, Divestment and Sanctions advocacy within Arizona and at Arizona 

universities. See 2nd Herzallah Decl. ¶ 5. 

This Court can grant relief by declaring that the anti-BDS Act violates the First 

Amendment, and by striking the “No Boycott of Israel” clause from all Arizona Board of 

Regents contracts. Such an order would provide Plaintiffs with permanent relief from the 

burden and chill caused by the anti-BDS Act’s plainly unconstitutional scope. The 

temporary relief provided by the Arizona Board of Regents’ piecemeal voluntary 

cessation does not suffice to cure Plaintiffs’ present and future First Amendment harms.

III. PLAINTIFFS HAVE STATED A SECTION 1983 CLAIM

The Arizona Board of Regents briefly contends that it has taken no unconstitutional 

action because the invitation Plaintiffs received originated from a student group. See 

MTD, Dkt. 24 at 17. Pursuant to the Arizona Board of Regents’ own policies, however, 

student groups are not distinct legal entities. See Policy 5-202: Associated Students, 

ARIZONA BOARD OF REGENTS, available at https://public.azregents.edu/Policy%20Manual

/5-202-Associated%20Students.pdf. Yet even when invited by students, all speaker 

contracts are promulgated by and must be signed by the Arizona Board of Regents. See 

Cárdenas Decl., Dkt. 24-1, Exs. A-C. The Arizona Board of Regents ultimately signed 

the modified contracts here. See 2nd Abbas Decl., Exs. K-M.

1

 The Arizona Board of 

Regents is also bound to follow state law, and thus continues to incorporate objectionable 

“No Boycott of Israel” clauses in other contracts, including speaker contracts at other 

universities. See Section II-A, supra. Accordingly, Plaintiffs have plausibly alleged that 

 1 Defendants attach what purport to be copies of the modified speaker agreement,

as executed during this litigation. See Cárdenas Decl., Dkt. 24-1 ¶ 7 & Ex. D. However, Defendants do not disclose that they rejected the executed agreements they provided to 

the Court because student organizations lack the authority to sign them. The final 

versions, crossing out the student signatures and bearing the Arizona Board of Regents 

signatures, are attached. See 2nd Abbas Decl. Exs. L-M.

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 21 of 23
- 17 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the Arizona Board of Regents itself has engaged and will continue to engage in conduct 

harming Plaintiffs’ First Amendment rights.

The Attorney General likewise contends that because, to date, he has only defended 

the Act’s constitutionality and not actively enforced it, he is not a proper Defendant to this 

suit. See MTD, Dkt. 24 at 15-17. The question regarding the Attorney General’s 

propriety as a defendant, however, is whether there is a sufficient connection between his 

responsibilities and any injury that Plaintiffs might suffer. Planned Parenthood of Idaho, 

Inc. v. Wasden, 376 F.3d 908, 919-20 (9th Cir. 2004). The requisite connection exists 

here. The Attorney General is responsible for enforcing the anti-BDS law, including to 

prosecute custodians of public funds for paying those funds to another person “[w]ithout 

authority of law.” Ariz. Rev. Stat. § 35-301(1). Any payment of expenses or an 

honorarium to a contracted BDS speaker would violate this term. The Attorney General 

thus “has ‘a powerful coercive effect on the action agency,’” which makes him a proper 

defendant in this action challenging the constitutionality of the anti-BDS Act. Planned 

Parenthood of Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075, 1094 (D. Ariz. 2016)

(citation omitted); see also Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 

U.S. 59, 71-72 & n.16 (1978). 

Separately, it appears that the Attorney General’s enforcement arm may be, or is 

likely to be, at odds with the position of the Arizona Board of Regents. The Attorney 

General is currently engaged in litigation with the Arizona Board of Regents regarding 

universities’ perceived compliance with state law on tuition matters related to

undocumented immigrants. State of Arizona v. Arizona Board of Regents, No. CV2017-

012115 (Maricopa Sup. Ct. filed Sept. 8, 2017). Plaintiffs thus plausibly allege that a

court order limited to the Arizona Board of Regents alone would not provide the full 

scope of relief, as the Attorney General could still enforce the anti-BDS Act against the 

universities. 

CONCLUSION

The Court should deny Defendants’ Motion to Dismiss.

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 22 of 23
- 18 -

OPPOSITION TO MOTION TO DISMISS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dated: May 14, 2018 CAIR LEGAL DEFENSE FUND

By /s/ Gadeir I. Abbas 

 Lena F. Masri (D.C. Bar No. 1000019)

 (pro hac vice)

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

 (pro hac vice)

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

 (pro hac vice)

 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

 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

Case 2:18-cv-00670-JJT Document 28 Filed 05/14/18 Page 23 of 23