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Lawsuit Challenges Laws Barring Israel Boycott

STEVE INSKEEP, HOST:

A lawsuit in Arizona may determine if states can keep their laws that limit boycotts of Israel. Many states have such laws. Here's Will Stone of member station KJZZ.

WILL STONE, BYLINE: Mik Jordahl never expected his views on Israel to come up at work. But several years ago, the attorney noticed a new clause in his contract with an Arizona county jail, saying...

MIK JORDAHL: That I will not engage in any type of boycott of Israel - that includes even the occupied territories of Israel.

STONE: Arizona had recently passed a law prohibiting the state from doing business with anyone boycotting the U.S. ally. That put Jordahl and his part-time job giving legal advice to inmates in a predicament. He's an advocate for Palestinian rights and an end to Israeli settlements.

JORDAHL: My main focus is on boycotting the companies that are profiting from the occupation on the West Bank.

STONE: So he sued the state, arguing the law infringes on his free speech.

JORDAHL: Basically, signing a political litmus test for a government contract is a violation of the Constitution. And I just felt like I had to put my foot down.

STONE: Jordahl is represented by the American Civil Liberties Union of Arizona. Kathy Brody is his attorney.

KATHY BRODY: This law in Arizona is part of a nationwide assault on the First Amendment, trying to suppress one side of a public debate.

STONE: In recent years, many states have passed laws like Arizona's in response to the spread of a prominent pro-Palestinian movement known as Boycott, Divestment and Sanctions, or BDS. Brody says that the ACLU isn't taking a stance on that movement but rather what it represents.

BRODY: Our Supreme Court has recognized that political boycotts are a form of protected speech.

STONE: She says that goes back to a 1980s civil rights case, when the court ruled a boycott of white-owned businesses in the South was protected by the First Amendment. But Marc Stern with the American Jewish Committee says that comparison doesn't hold up when it comes to Jordahl's boycott because public money is at stake. We spoke via Skype.

MARC STERN: The state is entitled to say, you can do that to your heart's content but not on our dime.

STONE: Attorneys for the state agree and say the law is also designed to prevent discrimination on the basis of national origin. Drew Ensign is with the Arizona Attorney General's Office.

DREW ENSIGN: Anti-discrimination laws have been widely and almost uniformly upheld against First Amendment challenges. Prohibiting discrimination is one of the highest interests of any government.

STONE: This case could clarify how to balance free speech and anti-discrimination in these boycott laws, says David Schraub of the UC Berkeley School of Law. He says many were passed quickly.

DAVID SCHRAUB: Not all of them were necessarily drafted with the utmost of care.

STONE: This is a shaking-out period, he says, to figure out what is and isn't protected.

SCHRAUB: We're right now seeing where those lines can be drawn and how far, you know, the state can go when protecting people against discrimination and ensuring marketplaces are open.

STONE: A recent ruling in a similar case offers an initial clue. A federal judge found that the Kansas version of this law did violate free speech. The state has since rewritten it to get around the lawsuit. That puts Arizona's case front and center in the debate over the limits of the political boycott.

For NPR News, I'm Will Stone in Phoenix. Transcript provided by NPR, Copyright NPR.

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