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Mikkel Jordahl v. Mark Brnovich

In Progress Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    September 27, 2018
  • Outcome
    Motion Denied, Injunction or Order Granted
  • Case Number
    3:17-cv-08263-DJH
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Constitutional Law
  • Themes
    Political Expression

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Case Analysis

Case Summary and Outcome

In 2016, the U.S. State of Arizona passed a law that required any company with whom it contracts to provide written certification that they are not boycotting Israel. An attorney who was contracted with the State to provide legal services to prisoners brought a legal suit claiming that the law violated his First Amendment rights and asking for a preliminary injunction against enforcement of the law.  The U.S. District Court for Arizona granted the motion for a preliminary injunction and denied the State’s motion to dismiss.

This case is ongoing and will be updated as the case proceeds. 


Facts

In 2016, the U.S. State of Arizona enacted a statute that 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)

Mikkel Jordahl is an attorney who runs his own law firm. He is contracted with the State to provide legal services to prisoners. Mr. Jordahl personally supports the boycott against businesses that support Israel’s occupation of the Palestinian territories and he is 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, together with his law firm, brought suit against the Arizona Attorney General and the sheriff and various members of local government in the county where he provides legal services, requesting a preliminary injunction to stop the enforcement of the certification requirement in its entirety, or alternatively prevent the enforcement certification requirement against him. The State of Arizona intervened and moved that the case be dismissed on the ground that it would be unlikely to succeed on the merits.  The U.S. District Court heard these motions on May 23, 2018, and issued its order on September 27, 2018.


Decision Overview

The Honorable Diane Humetewa of the U.S. District Court granted the plaintiffs’ motion for a preliminary injunction and denied the State of Arizona’s motions to dismiss.

First, the court addressed the issue of standing. The State of Arizona had argued that the plaintiffs did not have standing to challenge the constitutionality of the statute. The court dismissed this argument. It noted two important precedents regarding the First Amendment and standing: first, the court noted 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 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 court furthermore 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.

Turning to the plaintiff’s motion for a preliminary injunction, the court noted 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 court found that the plaintiffs was 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 court found that the Act 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.

For the remaining elements, the court 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. Finally, the court considered 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.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

Despite the precedent set in Claibornemultiple States have enacted laws that require individuals and entities contracted with the State to provide some sort of promise that they are not engaging in the boycott against Israel. The U.S. District Court for the District of Arizona stated that requiring a government contractor to provide written certification that they are not boycotting Israel was likely to violate the First Amendment. This may prompt a shift in other States who try to stop individuals and companies from expressing their political opinions through a boycott.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010)
  • U.S., Massachusetts v. E.P.A., 549 U.S. 497 (2007)
  • U.S., Cal. Pro–Life Council Inc. v. Getman, 328 F.3d 1088 (2003)
  • U.S., Ariz. Right to Life Pol. Action Comm. v. Bayless, 320 F.3d 1002 (2003)
  • U.S., Dombrowski v. Pfister, 380 U.S. 479(1965)
  • U.S., LSO, Ltd. v. Stroh, 205 F.3d 1146 (2000)
  • U.S., Citizens United v. FEC, 558 U.S. 310 (2010)
  • U.S., Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979)
  • U.S., Alliance for Open Soc. Intern., Inc. v. U.S. Agency for Intern. Dev., 570 F. Supp. 2d 533 (2008)
  • U.S., Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (2010)
  • U.S., Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013)
  • U.S., United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995)
  • U.S., Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046 (2009)
  • U.S., Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)
  • U.S., Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)
  • U.S., Lands Council v. McNair, 537 F.3d 981 (2008)
  • U.S., Buckley v. Valeo, 424 U.S. 1 (1976)
  • U.S., Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)
  • U.S., Janus v. Am. Fed'n of State, Cnty. & Mun. Emp., Council 31, No. 16-1466, 585_ (2018)
  • U.S., Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986)
  • U.S., Legal Services Corporation v. Velazquez, 531 U. S. 533 (2001)
  • U.S., Associated Press v. United States, 326 U.S. 1 (1945)
  • U.S., Turner Broadcasting Sys. Inc. v. FCC, 512 U.S. 622 (1994)
  • U.S., Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S.Ct. 2277 (2012)
  • U.S., Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
  • U.S., Longshoremen v. Allied Int'l, Inc., 456 U.S. 212 (1982)
  • U.S., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
  • U.S., Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)
  • U.S., NAACP v. Alabama, 357 U.S. 449 (1958)
  • U.S., Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47 (2006)
  • U.S., United States v. O'Brien 391 U.S. 367 (1968)
  • U.S., Lyng v. Int’l Union, UAW, 485 U.S. 360 (1988)
  • U.S., Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (1984)
  • U.S., Lane v. Frank, 134 S. Ct. 2369 (2014)
  • U.S., Pickering v. Board of Education of Township High Sch. Dist. 205, 391 U.S. 563 (1968)
  • U.S., Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668 (1996)
  • U.S., Laird v. Tatum, 408 U.S. 1 (1972)
  • U.S., Perry v. Sindermann, 408 U.S. 593 (1972)
  • U.S., Alpha Energy Savers, Inc. Hansen, 381 F.3d 917 (2004)
  • U.S., Garcetti v. Ceballos, 547 U.S. 410 (2006)
  • U.S., Connick v. Myers, 461 U.S. 138 (1983)
  • U.S., Moonin v. Tice, 868 F.3d 853 (2017)
  • U.S., Dahlia v. Rodriguez, 735 F.3d 1060 (2013)
  • U.S., Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204 (9th Cir. 1996)
  • U.S., Gillette v. Delmore, 886 F.2d 1194 (1989)
  • U.S., McKinley v. City of Eloy, 705 F.2d 1110 (1983)
  • U.S., Rankin v. McPherson, 483 U.S. 378 (1987)
  • U.S., Elrod v. Burns, 427 U.S. 347 (1976)
  • U.S., Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

The decision was cited in:

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