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American Muslims for Palestine v. Arizona State University

United States District Court, D. Arizona

November 29, 2018

American Muslims for Palestine, et al., Plaintiffs,
v.
Arizona State University, et al., Defendants.

          ORDER

          Dominic W. Lanza United States District Judge.

         INTRODUCTION

         In February 2018, an advocacy group called American Muslims for Palestine and its chairman, Dr. Hatem Bazian (collectively, “Plaintiffs”), were invited to speak at an upcoming event at Arizona State University (“ASU”). Plaintiffs allege that, at the time the invitation was extended, ASU utilized a contract requiring outside speakers to certify they were “not currently engaged in a boycott of Israel and will not engage in a boycott of Israel during the term of this Contract.” Plaintiffs thus filed this lawsuit in March 2018. It poses a First Amendment challenge both to ASU's speaker contracts and to an Arizona statute that requires public entities to include “no boycott of Israel” clauses in certain types of contracts. See A.R.S. § 35-393.01(A).

         Almost immediately after the lawsuit was filed, Plaintiffs were informed that ASU doesn't require outside speakers to make any Israeli boycott-related certifications. As a result, Plaintiffs were allowed to speak at the ASU event in April 2018 without incident. Afterward, Defendants moved to dismiss. While the motion was pending, as part of an entirely different lawsuit, another court reached the merits of the constitutional issue and issued a preliminary injunction enjoining the enforcement of A.R.S. § 35-393.01(A). See Jordahl v. Brnovich, ___ F.Supp.3d ___, 2018 WL 4732493 (D. Ariz. 2018).

         The Court finds that it lacks subject matter jurisdiction over this case and will thus grant the motion to dismiss under Rule 12(b)(1) without reaching Defendants' 12(b)(6) arguments.[1] As explained below, jurisdiction is lacking for three interrelated reasons. First, Plaintiffs generally lack standing. The “irreducible minimum” of Article III's limit on judicial power is the requirement that the plaintiff “show he personally has suffered some actual or threatened injury.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982). Here, Plaintiffs have not suffered any injury (they were allowed to speak at the April 2018 event without signing a no-boycott certification) and any threat of future injury is remote and hypothetical (they have no specific plans to speak at an institution that requires speakers to provide a no-boycott certification and the state of Arizona has, in any event, been enjoined by a different court from enforcing A.R.S. § 35-393.01(A)).

         Second, one of Plaintiffs' claims for relief is moot-specifically, their request for an injunction that would “permit[] them to participate in the Muslim Students Association's planned April 3, 2018 event.” Because this event has now occurred, and Plaintiffs were allowed to participate in it, there is no longer a live controversy.

         Third, even if Plaintiffs were somehow able to eke past the injury-in-fact prong of the standing test, the Court concludes that, for prudential reasons, their remaining claims for relief are not ripe for review. The prudential ripeness test involves consideration of, among other things, “‘the hardship to the parties of withholding court consideration.'” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1141 (9th Cir. 2000) (en banc) (citation omitted). Here, Plaintiffs will suffer little to no hardship from a dismissal. The fate of A.R.S. § 35-393.01(A) will likely be resolved, one way or another, by the Ninth Circuit in the Jordahl appeal, and there's essentially no risk Plaintiffs will be injured by the statute while the appeal is pending (because Arizona is currently enjoined from enforcing it). Moreover, the statute isn't penal in nature, which further undermines any claim of hardship arising from deferred review.

         BACKGROUND

         A. The Complaint

         On March 17, 2016, Arizona enacted House Bill 2617, codified at Arizona Revised Statutes section 35-393 et seq. (the “Act”). (Doc. 1 ¶ 22.) As relevant here, the Act provides that “[a] public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction 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.” A.R.S. § 35-393.01(A).

         The complaint, filed on March 1, 2018, alleges that the Muslim Students Association at ASU regularly hosts events on campus, including inviting guest speakers, as a way of engaging in interfaith and intellectual dialogue. (Doc. 1 ¶ 28.) On February 22, 2018, the Muslim Students Association invited Plaintiffs to give a presentation on April 3, 2018 regarding the Boycott, Divestment, and Sanctions (“BDS”) movement, which seeks to impose economic pressure on Israel to cease settlement activity in certain territories. (Id. ¶¶ 17, 31.) Both American Muslims for Palestine and Dr. Bazian advocate for boycotts of Israel and intended to use the speaking opportunity at ASU to educate the campus community about the BDS movement. (Id. ¶ 35.)

         The complaint alleges that the Arizona Board of Regents and ASU require outside speakers to sign ASU's standard “Speaker/Artist/Performer Agreement.” (Id. ¶ 33.) The complaint alleges that paragraph 20 of this agreement provides: “No Boycott of Israel. As required by Arizona Revised Statutes § 35-393.01, Entity certifies it is not currently engaged in a boycott of Israel and will not engage in a boycott of Israel during the term of this Contract.” (Id. ¶ 34.) The complaint further alleges that Plaintiffs would not sign a contract with a “No Boycott of Israel” provision and that the presence of this clause was the only barrier to their participation in the April 3, 2018 event. (Id. ¶¶ 36-37.)

         The complaint asserts one cause of action, a § 1983 claim for violation of the First and Fourteenth Amendments, and seeks four categories of relief that are relevant to the analysis here: (1) a judgment declaring that A.R.S. § 35-393 is unconstitutional and unenforceable; (2) “a preliminary and permanent injunction striking the ‘No Boycott of Israel' clause from [Plaintiffs'] contemplated speaker contract with the Arizona Board of Regents and Arizona State University, thereby permitting [Plaintiffs] to participate in the Muslim Students Association's planned April 3, 2018 event regarding the BDS movement”; (3) “a preliminary and permanent injunction against Defendants' inclusion of boycott provisions under Ariz. Rev. Stat. § 35-393 in any state contract, and against Defendant Attorney General's continuing enforcement of Ariz. Rev. Stat. § 35-393”; and (4) a judgment declaring void all “‘No Boycott of Israel' clause[s] pursuant to Ariz. Rev. Stat. § 35-393 that now exist[] in any and all contracts between Arizona public entities and private companies or persons.” (Id. at 12-13.)[2] The complaint asserts that, “[a]bsent an injunction, Plaintiffs will suffer irreparable harm because they will be barred by state law and contract from engaging in protected First Amendment speech and association on a matter of public concern” and “will be chilled in their discussion of and advocacy for Palestinian rights, and unable to participate in the ASU MSA's April 3, 2018 event.” (Id. ¶ 58.) Finally, the complaint alleges that “[i]f Defendants are not enjoined from enforcing Ariz. Rev. Stat. § 35-393, and from including the ‘No Boycott of Israel' clause in state contracts, Plaintiffs and all advocates for Palestine will be effectively prohibited from entering into any agreement with the State of Arizona unless they give up the constitutionally-protected views that are central to their educational and advocacy missions.” (Id. ¶ 59.)

         B. Post-Complaint Developments

         On March 2, 2018, Plaintiffs moved for a preliminary injunction. (Doc. 9.)

         On March 8, 2018, Defendants filed their response to Plaintiffs' request for an expedited hearing. (Doc. 17.) In this response, Defendants noted that (1) ASU's General Counsel, José Cárdenas, had already explained to Plaintiffs' counsel that the contract sent to Plaintiffs was an incorrect, older version and (2) Mr. Cárdenas had also sent the correct version to Plaintiffs' counsel, which did not contain a “No Boycott of Israel” provision. (Id. at 3; Doc. 17-1 (Cárdenas Decl.) Ex. 1).) Mr. Cárdenas had also informed Plaintiffs' counsel that the statute did not apply in the context of speaking engagements and that ASU did not intend to enforce the statute to bar Plaintiffs' participation in the April 3, 2018 event. (Doc. 17 at 3; Doc. 17-1 (Cárdenas Decl.) Ex. 1.) Defendant Brnovich agreed with ASU's position in this filing. (Doc. 17 at 3-4.)

         Ultimately, on March 15, 2018, the parties filed a joint stipulation in which Defendants advised they would not enforce the Act against Plaintiffs in connection with the April 3, 2018 event or otherwise interfere with the event, and Plaintiffs agreed to ...


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