A new wave of state laws that try to limit Americans’ constitutional right to engage in political boycotts is now 0 for 2 in federal court.
On Thursday night, a federal court blocked Arizona from enforcing a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court agreed with the ACLU that the law likely violates contractors’ free speech rights under the First Amendment.
“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” U.S. District Court Judge Diane J. Humetewa wrote in issuing a preliminary injunction against the law.
This is the second federal court to consider this type of boycott ban, and they both came to the same conclusion. Earlier this year, the ACLU successfully blocked a remarkably similar law in Kansas. In that case, the court held that the First Amendment protects citizens’ right to “band together” and “express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens.”
We filed the Arizona lawsuit on behalf of Mikkel Jordahl, an attorney who has contracted with the state for the last 12 years to provide legal services on behalf of incarcerated individuals at the Coconino County Jail. Jordahl opposes Israel’s settlement expansion in Palestinian territories and what he considers Israel’s unwillingness to ensure the rights of Palestinians under its rule.
As a supporter of boycott campaigns targeting Israel, he refuses to purchase goods and services offered by companies operating in Israeli settlements in the occupied Palestinian territories. He wants to extend the boycott to his one-person law firm and to provide legal support to other boycott activists.
But Arizona’s law, enacted in August 2016, forbids state contractors from engaging in those activities. Last year, when Jordahl was asked to sign the no-boycott certification in order to renew his contract with Coconino County, he refused.
As the court in our case recognized, Arizona’s law directly violates state contractors’ First Amendment right to participate in collective efforts to advocate for social change. The right to participate in political boycotts was clearly established by the Supreme Court in NAACP v. Claiborne Hardware, a 1982 decision holding that the First Amendment protected an NAACP-organized boycott of white-owned businesses in Mississippi to protest ongoing racial segregation and inequality.
Quoting the Supreme Court, Judge Humetewa wrote, “The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change.’”
The Kansas and Arizona decisions send a clear message: The First Amendment right to boycott is alive and well. But our work is far from over. Similar contract requirements are on the books in , , , , , , , , , , , , , and . All of these laws violate the First Amendment. The hard work of repealing them should be taken up by state legislators who still value our constitutional freedoms.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.