Last month, a bill that bars government contractors from participating in a boycott of Israel or Israeli-controlled territories was signed into law by Gov. Doug Ducey.
Senate Bill 1167, sponsored by Sen. Paul Boyer, R-Glendale, was introduced in January to amend a previous anti-BDS law, House Bill 2617, which was signed in 2016. HB 2617 disallowed anyone who received a government contract from participating in boycotts, divestments or sanctions (BDS) actions against Israel. It required businesses in government contract positions to submit a written certification stating that the business was not currently boycotting Israel and would not do so in the future.
Sole proprietors were also affected by HB 2617. Individuals contracted by a state entity would have been required to agree to the anti-BDS clause even if they had no interactions with Israel.
After a federal court blocked the 2016 law in September 2018 citing a possible violation of the First Amendment, the state moved to appeal.
Boyer’s legislation alters the previous law so that the ban on BDS activities only applies to state government contractors with more than 10 employees, and would only be enforced if the contract were for at least $100,000. It now also exempts sole proprietorships from complying.
Boyer said HB 2617 was designed to cement Arizona as an ally to Israel and that SB 1167 will mitigate any confusion as to who will be affected by the law.
“This new bill makes it crystal clear that as an individual, if you have a sole proprietorship, then you can boycott to your heart’s content, if that’s your thing,” Boyer said. “But if a business that matches the guidelines we’ve set in this bill has taken a position against the state of Israel, then we’re just simply saying that’s fine you can do that, but we decided to make a policy not to do business with you.”
The senator said that Arizona has a strong relationship with Israel as a trading partner. Last year the Arizona Chamber of Commerce and Industry and the U.S. Chamber of Commerce’s U.S.-Israel Business Initiative signed a memorandum of understanding. That partnership focused on supporting economic and commercial ties between Arizona and Israel.
Proponents for the new law are happy to see Arizona take a strong stance against BDS. Jake Bennett, president of the Grand Canyon State Caucus, a bi-partisan PAC committed to building a strong U.S.-Israel relationship, said that SB 1167 is a victory for religious tolerance.
“Arizona is on the side of right and liberty,” Bennett said. “The BDS movement is not aimed at ‘policy reform’ as its proponents misleadingly tell some crowds. It is aimed at the elimination of Jewish life in Israel and of the state of Israel itself.”
The law does have its critics, though.
Kathy Brody, legal director for the ACLU of Arizona, said while the organization is glad the new law will mean that fewer people and organizations will have to sign the written certifications, she feels this new version is attempting to undermine the ACLU’s lawsuit against HB 2617. The lawsuit was filed on behalf of Sedona attorney Mikkel Jordahl, a sole proprietor who felt the law violated his freedom of speech.
The ACLU views requiring contractors to sign these anti-BDS certificates as compelled speech.
“I think that this is the state legislating the law in such a way to avoid any further constitutional challenges,” Brody said. “We view this as an admission that the law in place is unconstitutional and we see this as the state throwing its hands up in the face of this decision that it lost last year.”
SB 1167 may make the ACLU’s challenge moot, however, as the issues raised by the Jordahl lawsuit would no longer be valid.
Changing whom the law applies to could allow the state to win an appeal against Jordahl and the ACLU. However, Brody is confident that the suit will continue. “Based on our conversations with the lawyers for the state of Arizona, I currently believe that the hearing will occur.”
The hearing is scheduled for June 6. JN