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Arizona’s anti-BDS statute lands Arizona State University in federal court

By March 12, 2018

Earlier this month, the Council on American-Islamic Relations filed a lawsuit against Arizona State University on behalf of Hatem Bazian, a Berkeley lecturer and chair of American Muslims for Palestine who was invited to speak at ASU by the university’s Muslim Students Association. The agreement provided to him by ASU contained a provision — required by Arizona state law — demanding that he affirm he will not boycott Israel. Bazian’s planned presentation concerned the “Boycott, Divestment, and Sanctions” (BDS) movement targeting Israel.

Arizona’s statute prohibits any “public entity” from entering into any “contract with a company to acquire or dispose of services … 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.” The statute broadly defines “boycott,” in turn, to include not simply refusing to engage in business, but undertaking “other actions that are intended to limit commercial relations with Israel.”

While this might seem to refer only to contracts with corporate entities, the definition of “company” is broad, encompassing any “sole proprietorship, organization, [or] association,” in addition to corporate entities. As we’ve pointed out in the context of other anti-BDS statutes, broad definitions of those subject to the no-boycott verification requirement will likely impact public speakers contracted to speak on campus, who may operate through speakers’ bureaus, nonprofit organizations, or as sole proprietorships.

Arizona State University, for its part, has told the court and the media that it does not intend to enforce the provision, and that the no-boycott verification was included on an old version of the “Speaker/Artist/Performer Agreement” erroneously provided to Bazian.

But how could the statute’s plain language not require ASU, a public entity, to include “no boycott” verifications in contracts with public speakers? ASU has made two arguments so far.

The first is that speaking engagements are not “services” within the meaning of the statute. The statute, however, doesn’t define “services,” and it’s certainly true that a speaking engagement is a service that can be contracted. In fact, ASU’s new agreement itself refers to engaging the “[s]peaker to personally provide the following services” to the university:

The second argument, set forth by an ASU spokesman in a comment to the Arizona Capitol Times, is that the contract was with a student organization, and “[s]tudent groups are not public entities.”

That’s true. If this were a contract between a student organization and the speaker, the statute wouldn’t apply at all, and the speaker would not have to certify that he will not boycott Israel. But, again, the agreement provided by the university is expressly “between the Arizona Board of Regents acting for and on behalf of Arizona State University” and the speaker, not a student organization.

Arizona State University’s desire to accommodate Bazian is a welcome development, and it’s plainly clear that the obstacle to his speaking does not originate from the ASU administration. The university’s hands have been tied by the state legislature.

Free speech advocates have long warned that anti-BDS statutes risk chilling academic freedom and campus free speech. (Free speech advocates similarly warn that overbroad boycotts of foreign states by universities can create similar risks.) Arizona’s statute could have heeded these warnings by exempting state universities or contracts for speaking engagements, expressly excluding speakers from the definition of “company,” or by limiting itself to contracts with a value far in excess of what might reasonably be charged for a speaking engagement. While these changes might not have resolved every potential First Amendment concern, they might have limited the risk of chilling campus discourse.

CAIR’s lawsuit marks a second challenge to the Arizona statute. The ACLU is currently challenging the law in a separate action, a First Amendment suit that comes on the heels of a federal court decision enjoining Kansas’ anti-BDS law, which is nearly identical to Arizona’s. A number of states have enacted similar statutes, and the state of New York is currently considering a far-reaching proposal — which has twice passed the state’s senate before dying in the assembly — targeting any group that “indirectly promotes” a boycott of many allies of the United States.

We will be following these lawsuits and will keep FIRE readers apprised of any developments.

Schools: Arizona State University