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Arizona鈥檚 anti-BDS statute lands Arizona State University in federal court
Earlier this month, the filed a lawsuit against Arizona State University on behalf of , a Berkeley lecturer and chair of who was invited to speak at ASU by the university鈥檚 Muslim FIREAssociation. The agreement provided to him by ASU contained a provision 鈥 required by Arizona 鈥 demanding that he affirm he will not boycott Israel. Bazian鈥檚 planned presentation concerned the 鈥淏oycott, Divestment, and Sanctions鈥 (BDS) movement targeting Israel.
Arizona鈥檚 statute any 鈥減ublic entity鈥 from entering into any 鈥渃ontract with a company to acquire or dispose of services 鈥 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.鈥 The statute 鈥渂oycott,鈥 in turn, to include not simply refusing to engage in business, but undertaking 鈥渙ther actions that are intended to limit commercial relations with Israel.鈥
While this might seem to refer only to contracts with corporate entities, the of 鈥渃ompany鈥 is broad, encompassing any 鈥渟ole proprietorship, organization, [or] association,鈥 in addition to corporate entities. As we鈥檝e 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鈥 bureaus, nonprofit organizations, or as sole proprietorships.
Arizona State University, for its part, has and the that it does not intend to enforce the provision, and that the no-boycott verification was included on an old version of the 鈥淪peaker/Artist/Performer Agreement鈥 erroneously provided to Bazian.
But how could the statute鈥檚 plain language not require ASU, a public entity, to include 鈥渘o boycott鈥 verifications in contracts with public speakers? ASU has made two arguments so far.
The first is that speaking engagements are not 鈥渟ervices鈥 within the meaning of the statute. The statute, however, doesn鈥檛 define 鈥渟ervices,鈥 and it鈥檚 certainly true that a speaking engagement is a service that can be contracted. In fact, itself refers to engaging the 鈥淸s]peaker to personally provide the following services鈥 to the university:
The second argument, set forth by an ASU spokesman in a , is that the contract was with a student organization, and 鈥淸s]tudent groups are not public entities.鈥
That鈥檚 true. If this were a contract between a student organization and the speaker, the statute wouldn鈥檛 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 鈥渂etween the Arizona Board of Regents acting for and on behalf of Arizona State University鈥 and the speaker, not a student organization.
Arizona State University鈥檚 desire to accommodate Bazian is a welcome development, and it鈥檚 plainly clear that the obstacle to his speaking does not originate from the ASU administration. The university鈥檚 hands have been tied by the state legislature.
Free speech advocates have warned that anti-BDS statutes risk chilling academic freedom and campus free speech. (Free speech advocates that overbroad boycotts of foreign states by universities can create similar risks.) Arizona鈥檚 statute could have heeded these warnings by exempting state universities or contracts for speaking engagements, expressly excluding speakers from the definition of 鈥渃ompany,鈥 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鈥檚 lawsuit marks a second challenge to the Arizona statute. The in a separate action, a First Amendment suit that comes on the heels of a federal court decision enjoining Kansas鈥 anti-BDS law, which is nearly identical to Arizona鈥檚. A number of states have enacted similar statutes, and the state of New York is currently considering a far-reaching proposal 鈥 which has twice passed the state鈥檚 senate before dying in the assembly 鈥 targeting any group that 鈥渋ndirectly promotes鈥 a boycott of many allies of the United States.
We will be following these lawsuits and will keep FIREreaders apprised of any developments.
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