In an important victory against the BDS movement, Arizona’s Attorney General Mark Brnovich filed a brief in late December stating that the BDS campaign was motivated by antisemitism and aids terrorist groups such as Hamas.
He also noted the PLO and its practice of “paying cash stipends to the families of terrorists.”
According to a lawyer familiar with the case, it possibly marked the first time a U.S. government body has formally taken the stance acknowledging that the BDS campaign aids actors that engage in or reward terrorism.
Brnovich told the U.S. Ninth Circuit Court of Appeals that a state law enacted in 2016 “prohibits all state contractors who receive taxpayer money from discriminating on the basis of national origin,” and that the BDS was not protected under freedom of expression.
The law was blocked by a federal court in September following a lawsuit alleging First Amendment violations, with the judge ruling in favor of plaintiff Mikkel Jordahl, a state contractor who said his ability to boycott Israel in a professional capacity was being unconstitutionally limited.
Brnovich, however, argued in his appeal that BDS specifically aims to inflict “economic pain” on those with an Israeli background, disproportionately impacts Jews and often has “antisemitic motivations.” Legislation banning similar discrimination has been repeatedly upheld by the Supreme Court in the face of First Amendment challenges, he added.
While noting that contractors may freely boycott Israel in their personal capacity, Brnovich asserted that public funds should not support “economic warfare” against Israelis and their country.
“The First Amendment does not leave the state powerless to prevent its commerce from furthering such unsavory, and frequently murderous, ends,” he concluded.
