Case Summary and Outcome

The U.S. Court of Appeals for the Ninth Circuit dismissed a claim that an Arizona Bill, which prohibited public entities from contracting with companies engaging in “boycott[s] of Israel,” violated the First Amendment rights of the plaintiff finding that the claim was now moot. The Plaintiff Mikkel Jordahl was contracted with the State to provide legal services to prisoners, but was refused payment for his services on the grounds that he is a supporter of the Boycott, Divestment, and Sanctions campaigns to protest the Israeli government’s occupation of Palestinian territories. The State of Arizona, an intervenor in the case, appealed the decision of the District Court of Arizona to grant Mr Jordahl declaratory and injunctive relief against the impugned Act. While the appeal was pending, the State amended portions of the Act such that it no longer applied to Mr Jordahl and his law firm. The Court reasoned that, as the Act no longer applied, the previous claims were moot and remanded the case to the district court.

Facts

In 2016 the U.S. State of Arizona enacted Bill 2617, which prohibited public entities from entering into contracts with private companies 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”. (A.R.S. § 35-393.01)

The Plaintiff-Appellant is Mikkel Jordahl, an attorney who runs his own law firm. He is contracted with the State to provide legal services to inmates of the Coconino County Jail District for approximately $18,000 per year. Mr. Jordahl personally supports the boycott against businesses that support Israel’s occupation of the Palestinian territories. He is also a member of various organizations that support the boycott of Israel and promote peace in the Middle East. Mr. Jordahl wished to extend his personal beliefs into his law practice. He would like his firm to participate in the boycott and provide financial support to like-minded organizations. Mr. Jordahl claims he reluctantly signed the written certification in 2016 and did not publicly express his views for fear of losing approximately 10 percent of his income. In 2017,  Mr. Jordahl refused to sign the certification. He continued his contract work but the State has failed to pay him.

Mr Jordahl, along with his law firm, brought suit against the Arizona Attorney General, the Coconino County Sheriff and the Jail District Board of Directors under 42 U.S.C. § 1983. Mr Jordahl claimed that the impugned Bill 2617 violated the First Amendment both on its face and as it applied to him. The State of Arizona intervened as the Defendant and moved that the case be dismissed as it was unlikely to succeed on its merits.

On September 27, 2018, the district court granted Mr Jordahl’s motion for a preliminary injunction, preventing the state Arizona from enforcing the certification required and denying their motion to dismiss.

The decision was appealed and, while the decision was pending in 2019, the State of Arizona amended portions of the impugned Act with the revised Senate Bill 1167. The revised Act contained two principle changes that exempt Mr Jordahl and his law firm. The revised Act’s anti-boycott certification requirement now applies only to, firstly, companies with ten or more full-time employees and, secondly, with contracts of $100,000 or more. The amendments to the bill took effect from August 2019.

On January 6, 2020, the U.S. Court of Appeals for the Ninth Circuit published their decision.

Decision Overview

Justices Rawlinson, Bea, and Nguyen delivered the opinion of the U.S. Court of Appeal.

The main issue before the Court was whether Mr Jordahl’s claims for declaratory and injunctive relief, granted by the District Court of Arizona, could be upheld against the amended Senate Bill 1167.

The Court of Appeal held that Mr Jordahl’s claims for declaratory and injunctive relief were “moot” as the impugned Act no longer applies to him or his law firm (Bd. of Trs. of the Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1197 (9th Cir. 2019)). Senate Bill 1167, amended from Bill 2617, now applies to companies with ten or more full-time employees and contracts of at least $100,000, which does not include Mr Jordahl’s firm. As such, the preliminary injunction by the court of first instance was vacated and the case was remanded to the District Court with instructions to dismiss the claims.

District Court of Arizona, September 27, 2018

The court of first instance, the District Court of Arizona, had previously held that the plaintiffs did have a standing to challenge the constitutionality of the statute. Delivering the opinion of the District Court, Justice Diane Humetewa noted two important precedents regarding the First Amendment and standing: first, that the Supreme Court has dispensed with rigid standing requirements in First Amendment cases, citing the Ninth Circuit Court of Appeals decision in Cal. Pro–Life Council Inc. v. Getman; and second, the court held that plaintiffs need not wait for the injury to occur, they must only show “a realistic danger of sustaining a direct injury”, citing the Ninth Circuit Court of Appeals decision in Arizona Right to Life Political Action Committee v. Bayless. Furthermore, the District Court recognized that the plaintiffs had already been injured in two ways: first, when made to promise not to engage in a boycott in exchange for a government contract, which stopped the firm from boycotting products associated with Israel and providing legal and financial assistance to like-minded organizations; and second, the county stopped paying plaintiffs for their legal services when they refused to re-certify in 2017.

The District Court had also denied the State’s motion to dismiss the Attorney General from the case, as well as the State’s assertion that the Court should abstain or certify the matter to the Arizona Supreme Court.

Concerning the plaintiff’s motion for a preliminary injunction, the court of first instance held that an injunction may be granted when the plaintiff “is likely to succeed on the merits, […] is likely to suffer irreparable harm in the absence of preliminary relief, […] the balance of equities tips in his favor, and that an injunction is in the public interest.’” (citing the Ninth Circuit Court of Appeals decision in Am. Trucking Ass’ns, Inc. v. City of Los Angeles). The District Court found that the plaintiffs were indeed likely to succeed on the merits. It noted that the First Amendment protects both political speech and political expression, emphasizing that people must be free to individually decide what they believe, citing the Supreme Court’s dictum that “[t]he government may not…compel the endorsement of ideas that it approves” (Knox v. Service Employees Intern. Union).

The District Court found that the impugned Bill 2617, in its original form, burdens expressive conduct protected under the First Amendment. The court recalled that in NAACP v. Claiborne Hardware Co., the Supreme Court “expressly found that non-union boycotting activities aimed ‘to bring about political, social and economic change’ were protected activities under the First Amendment.” The Court held that it does not matter if the State can construe the language of the statute to argue a different meaning if the effect on the conduct of the speaker remains the same. While an individual choosing not to buy a product based on a boycott may not alone garner First Amendment protections because it requires explanatory conduct to become expressive, when a State requires a promise to not boycott a product or a company in exchange for a contract it directly violates the precedent set in Claiborne.

The District Court originally found that, without a preliminary injunction, the plaintiffs were likely to suffer irreparable harm. The plaintiffs had therefore demonstrated that balance of equities and public interest favor an injunction. The court finally held that, in contrast to the plaintiffs, there was no realistic likelihood that the defendants would be harmed by being unable to enforce a law that violates the First Amendment on its face.