Ducey signs bill loosening anti-BDS law in attempt to stop litigation

A bill to loosen the rules on which government contractors can participate in boycotts of Israel in an attempt to undermine a lawsuit has been signed into law by Gov. Doug Ducey.

Senate Bill 1167, sponsored by Sen. Paul Boyer, R-Glendale, narrows an existing Arizona law that bars anyone who the government works with from participating in a boycott of Israel. That law, which was passed in 2016, was recently blocked in federal court after a judge ruled it is likely unconstitutional on First Amendment grounds.

The 2016 law applied to anyone who got a government contract, and required them to agree not to participate in a boycott, divest and sanction action against Israel, commonly referred to as BDS.

Boyer’s legislation would restrict the ban on BDS activities to government contractors with more than 10 employees, and would only be triggered if the contract is for at least $100,000.

Kathy Brody, legal director for ACLU of Arizona, which brought the lawsuit against the 2016 law, called the bill a “face-saving measure.”

“Arizona is clearly running scared after a federal district court ruled that its law violates the First Amendment right to boycott,” Brody said in a statement to the Mirror. “If the state had the courage of its convictions, it would have defended its law in court.”

“We’re glad that thousands of individuals and small businesses throughout Arizona, including our client, will no longer be required to sign these unconstitutional anti-BDS certifications,” Brody said. “Any businesses asked to sign these certifications under the new law should call the ACLU of Arizona.”

Gregg Leslie, a constitutional attorney and executive director of the First Amendment Clinic at the Sandra Day O’Connor College of Law, previously told the Arizona Mirror that limiting the current law to economic activity makes the bill “less problematic,” but he added that one can’t ignore the bill’s history, which has had “First Amendment issues.”

Leslie also noted that Boyer’s bill could make the legal challenge against the current law moot, as the issues raised by the person suing the state would be gone. The plaintiff in that case would not meet the criteria under the legislation that Ducey signed today.

The current law applies to sole proprietors, so someone who is contracted to do legal services for a state entity is required to agree to the anti-BDS clause, even if they have no interactions with Israel.

The court found this to be “likely unconstitutional”.

By changing who the law applies to, Leslie said Boyer’s bill could help the state win an appeal.

Leslie said the new law would have “a better chance” of standing up to challenges, but it still would not entirely remedy the First Amendment issues raised.

“The First Amendment issues will never fully go away when you try to limit types of activity like this,” Leslie said.

He also wondered what would stop the legislature from enacting similar bills to prevent the government from working with companies that support abortion or other controversial issues.