Saying it interferes with First Amendment rights, a federal judge late Thursday blocked Arizona from enforcing a law that denies state and local government contracts to firms unless they agree not to boycott Israel or companies that operate there.
In an extensive ruling, Judge Diane Humetewa rejected arguments by Attorney General Mark Brnovich that lawmakers have a legal and even moral right to prevent public dollars from going individuals and companies who try to pressure the Israeli government through economic means. She said the state cannot use its economic power to deny people their right to speak out and act on their personal beliefs.
Thursday's ruling is not the last word.
While enjoining enforcement of the 2016 law, Humetewa gave Brnovich the opportunity to convince her that the 2016 law has a legitimate -- and legal -- purpose.
But the judge, in a 36-page ruling, said everything she has seen to this point, including Brnovich's arguments, convinces her that the law is, in fact, unconstitutional and that it will ultimately be permanently struck down. And in the meantime, Humetewa said, she cannot allow the state to enforce the law, saying they "implicate core protections of the First Amendment.''
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,'' the judge said.
"We're obviously disappointed the judge didn't recognize that the state has a legitimate interest in prohibiting anti-Semitism in state contracting,'' said Brnovich spokesman Ryan Anderson. "We plan to appeal the decision, not just because we think we're legally right, but it's morally the right thing to do as well.''
In her ruling, though, Humetewa saw the state's argument as seeking to bar discrimination based on national origin. But she said Arizona "clearly has less intrusive and more viewpoint-neutral means to combat such discrimination'' than denying public contracts with those who disagree.
The law spells out that public agencies cannot enter into contracts with any company unless the deal includes "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.''
David Gowan, who was House speaker at the time, said he wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement.
The idea behind the BDS movement is to get people to boycott companies that do business with Israel. That, in turn, is designed to pressure that country to change its policies ranging from settlements on the West Bank to claims of apartheid.
Gowan called the movement "anti Semitic.'' saying his legislation shows Arizona is supportive of Israel, "its strongest ally in the Middle East.''
The American Civil Liberties Union filed suit last year on behalf of Mik Jordahl, a Flagstaff attorney who has been doing legal work for the Coconino County Jail District worth more than $18,000 a year.
Jordahl, according the lawsuit, also is a non-Jewish member of Jewish Voice for Peace which endorses the BDS movement to protest the actions of the Israeli government "including the occupation of Palestinian territories.'' And it says he personally boycotts consumer goods and services provided by businesses supporting the occupation.
He signed the certification the first time two years ago on behalf of his law firm. But when asked to sign again last year, Jordahl balked and challenged the law, both for himself and his law firm.
"The First Amendment protects political association as well as political expression,'' Humetewa wrote.
"At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence,'' the judge wrote, quoting prior U.S. Supreme Court rulings. "Indeed, if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matter of opinion or force citizens to confess by work or act their faith therein.''
All that, she said, applies to boycotts.
"Collective boycotting activities undertaken to achieve social, political or economic ends is conduct that is protected by the First Amendment,'' Humetewa wrote.
Where the Arizona law goes wrong, she said, is that it lists activities that companies cannot engage in if they wish to get public contracts. More to the point, the judge said, it bars those action only when taken "in compliance with or adherence to calls for a boycott of Israel.''
"Such a regulation squarely raises First Amendment concerns,'' she said. "Indeed, reasoning otherwise would completely undermine the First Amendment's long-held precedents protecting First Amendment rights to assemble so that the citizens of this country can collectively secure compliance with their political demands.''
Humetewa said that's clearly what's at issue here.
"Through this collective action, Mr. Jordahl and these organizations seek to protect the 'equal human dignity and rights for all people in the Holy Land' and 'an end to Israeli settlement building and the occupation of Palestinian land,' '' she said. "A restriction of one's ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott.''
The judge also rebuffed any suggestion that the government is entitled to place restrictions on those who get government funds.
"Citizens do not surrender their First Amendment rights by accepting public employment,'' Humetewa wrote, a concept she said that extends to those who have public contracts.
"The court has little difficulty in finding that the actions prohibited by the act have no relation to plaintiffs' official duties,'' she said. "The state has not and cannot explain how preventing plaintiffs' from engaging in a boycott of Israel as defined by the act further or affects the plaintiffs' duty in representing his clients in relation to that contract.''