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Download Legal Document Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 1 of 26 No. 18-16896 ___________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ___________________________________________________________ MIKKEL JORDAHL and MIKKEL (MIK) JORDAHL, P.C., Plaintiffs-Appellees, v. THE STATE OF ARIZONA and MARK BRNOVIC, ARIZONA ATTORNEY GENERAL, Defendants-Appellants, and JIM DRISCOLL, COCONINO COUNTY SHERIFF, et al., Defendants. On Appeal from the United States District Court for the District of Arizona Case No. 3:17-cv-08263 ___________________________________________________________ BRIEF OF AMICI CURIAE, AMERICAN FRIENDS SERVICE COMMITTEE, ISRAEL PALESTINE MISSION NETWORK OF THE PRESBYTERIAN CHURCH (USA), A JEWISH VOICE FOR PEACE, INC., US CAMPAIGN FOR PALESTINIAN RIGHTS, US PALESTINIAN COMMUNITY NETWORK, US CAMPAIGN FOR THE ACADEMIC AND CULTURAL BOYCOTT OF ISRAEL AND FRIENDS OF SABEEL NORTH AMERICA, IN SUPPORT OF PLAINTIFFS-APPELLANTS AND AFFIRMANCE ___________________________________________________________ JETHRO M. EISENSTEIN PROFETA & EISENSTEIN 45 Broadway, Suite 2200 New York, New York 10006 (212) 577-6500 Attorneys for Amici Curiae ___________________________________________________________ Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 2 of 26 CORPORATE DISCLOSURE STATEMENT A Jewish Voice for Peace, Inc. has no parent corporations. It has no stock, so therefore no publicly held company owns 10% or more of its stock. The other amici joining in this brief are not corporations. Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 3 of 26 TABLE OF CONTENTS Page Table of Cases and Authorities ............................................................... ii INTEREST OF AMICI CURIAE ........................................................... 1 INTRODUCTION .................................................................................. 2 ARGUMENT .......................................................................................... 4 The Identity of the Proposed Amici ............................................. 4 The Purpose of the boycott movement ......................................... 12 The Genesis of the Certification Requirement ............................. 15 The Focus of Boycotts for Palestinian Rights .............................. 16 CONCLUSION ....................................................................................... 19 i Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 4 of 26 TABLE OF CASES AND AUTHORITIES Page(s) CASES Jordahl v. Brnovic, 336 F.Supp.3d 1016 (D. Az. 2018) ............................. 15 Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan. 2018) .......................... 16 N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) ............... 11, 18 19 Voices for Choices v. Ill. Bell Tel. Co., 339 F. 3d 542 (7th Cir. 2003) (Posner, J., in chambers) .......................................................................... 2 STATUTES A.R.S §§ 35-393 et seq. .............................................................................. 1 A.R.S. § 35-393.01(A) ................................................................................ 2 A.R.S. § 35-393(1) ...................................................................................... 16 Federal Rule of Appellate Procedure 29(a)(4)(E) ....................................... 1 OTHER AUTHORITIES Bed and Breakfast on Stolen Land: Tourist Rental Listings in West Bank Settlements, Human Rights Watch Report November 20, 2018 https://www.hrw.org/sites/default/files/report_pdf/ israel1118_web_0.pdf .............................................................................. 17 https://foreignpolicy.com/2018/11/27/if-the-u-s-government-wont- act-airbnb-will-west-bank-settlements-rentals-occupation-israel- palestinians-netanyahu/?utm_source=PostUp&utm_medium=email& utm_campaign=7745&utm_term=Morning%20Brief%20OC ................ 18 https://www.jta.org/2017/12/29/news-opinion/israel-middle-east/ israeli-government-oks-72-million-anti-bds-project ............................... 15 ii Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 5 of 26 https://www.theguardian.com/news/2018/aug/14/bds-boycott- divestment-sanctions-movement-transformed-israeli- palestinian-debate .................................................................................... 15 http://www.worldbank.org/en/country/westbankandgaza/overview .......... 13 iii Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 6 of 26 INTEREST OF AMICI CURIAE1 Amici are the American Friends Service Committee, the Israel Palestine Mission Network of the Presbyterian Church (USA), A Jewish Voice for Peace, Inc., the US Campaign for Palestinian Human Rights, the U.S. Palestinian Community Network, Friends of Sabeel, and the United States Campaign for the Academic and Cultural Boycott of Israel. Each of the amici is a U.S.-based peace, social justice, and/or religious non- governmental organizations. Each is committed to justice, equality and human rights of all people, including Palestinians and Israelis. The Amici support the boycott of Israel for the purpose of pressuring Israel to respect the human rights of the Palestinian people. The Amici collectively have thousands of members and supporters, in Arizona and throughout the United States, who participate in the boycott of Israel and who are affiliated with companies that would be directly affected by the enforcement of A.R.S §§ 35-393 et seq., the statute at issue in this case. They have organized or supported scores of different boycott campaigns for Palestinian human rights. Each of the Amici came to support the boycott movement on the basis of its own political, religious and moral 1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), no one, except counsel for Amici, has authored this brief in whole or in part or contributed money toward the preparation of this brief. All parties have consented to the filing of this brief. Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 7 of 26 principles, in order to challenge and express disapproval of the Israeli government’s discriminatory policies. All of the Amici seek to communicate to the Court that support for the boycott movement is not discriminatory. Support for the boycott movement is a measure to combat the systematic discriminatory practices of the Israeli government that deny Palestinians justice and equality under the law. Accordingly, the proposed Amici have “. a unique perspective [and] specific information that can assist the Court beyond what the parties can provide.” Voices for Choices v. Ill. Bell Tel. Co., 339 F. 3d 542, 545 (7th Cir. 2003)(Posner, J., in chambers). The proposed Amici seek to appear in support of Plaintiffs-Appellees Mikkel Jordahl and Mikkel (Mik) Jordahl, P.C. and in support of affirmance of the order of the District Court made on September 27, 2018. INTRODUCTION By order dated September 27, 2018, the District Court enjoined enforcement of the Certification Requirement in A.R.S. § 35-393.01(A), which provides that every company contracting with public entities in the State of Arizona must certify that it is not engaged in, and for the duration of the contract promises that it will not engage in, a boycott of Israel. The District Court readily concluded that requiring Plaintiffs-Appellees to 2 Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 8 of 26 promise not to engage in a boycott of Israel burdened expressive political activity protected under the First Amendment, and that the State had no legitimate countervailing interest in restricting the expressive conduct of Plaintiff-Appellees on a matter of public concern. For centuries, boycotts have been effective mechanisms for political protest; the Boston Tea Party, the Montgomery Bus Boycott, and the global movement to divest from South African businesses, for example, all sought and contributed to desired social change. Boycott and divestment campaigns for Palestinian human rights are no different. In aiming to change the state practices of Israel, boycott campaigns engage in an activity that lies at the heart of the First Amendment in a democracy—people who share common views banding together in expressive activity to achieve a common end. The District Court fulfilled its time-honored role in protecting this expressive activity. Appellants have sought to invoke US laws against discrimination in their effort to justify the Certification Requirement. To do this, they have created a false identity between Jews, on the one hand, and the State of Israel and its policies on the other. They suggest, in other words, that boycotting the State of Israel is the same as boycotting Jews. But the State of Israel is not within any class or category protected by US laws against 3 Case: 18-16896, 01/22/2019, ID: 11161862, DktEntry: 69, Page 9 of 26 discrimination, and the boycott movement for Palestinian rights does not discriminate against Jews or any other group. Companies and institutions are boycotted for complicity in Israel’s human rights abuses, not because of their religious affiliation or national origin. They are boycotted, in other words, because of what they do, and not because of who they are. Boycotts to support Palestinian rights thus are not discriminatory. They are efforts to pressure the government of the state of Israel to end its discrimination against the Palestinian people, by exerting economic pressure on companies and institutions
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