A pro-BDS demonstration. Photo: Alex Chis.

A brief filed last week by Arizona’s attorney general maintains that the boycott, divestment, and sanctions (BDS) campaign against Israel aids terrorists — potentially marking the first time a US government official has formally taken such a stance, according to a lawyer familiar with the case.

In an opening argument submitted to the US Ninth Circuit Court of Appeals, Arizona Attorney General Mark Brnovich wrote that legislation enacted by his state in 2016 that bars public bodies from contracting with companies that boycott Israel seeks to prevent taxpayer funds from subsidizing discrimination based on nationality, national origin, and religion.

The law, passed with bipartisan super-majorities, was blocked by a federal court in September following a lawsuit alleging First Amendment violations, with Judge Diane Humetewa ruling in favor of plaintiff Mikkel Jordahl, a state contractor who said his ability to boycott Israel in a professional capacity was being unconstitutionally limited.

“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,” Humetewa determined.

Similar legislation was suspended and subsequently amended this year in Kansas, one of 26 states to pass measures in recent years against BDS, a Palestinian-led campaign that says it seeks to redefine Israel “as a pariah state” until it abides by international law.

While major Jewish organizations and other critics have denounced the movement as discriminatory for singling out Israel and rejecting the Jewish people’s right to national self-determination, anti-Zionist and some civil rights groups have largely objected to state and federal attempts to intervene. The American Civil Liberties Union, which represented Jordahl and is currently challenging anti-BDS legislation in Texas, has warned that such efforts infringe on protected political expression.

Yet Brnovich argued in his appeal that BDS specifically aims to inflict “economic pain” on those with an Israeli background, disproportionately impacts Jews, and often has “anti-Semitic motivations.” Legislation banning similar discrimination has been repeatedly upheld by the Supreme Court in the face of First Amendment challenges, he added.

While noting that contractors may freely boycott Israel in their personal capacity, Brnovich asserted that public funds should not support “economic warfare” against Israelis and their country — “an important U.S. trading partner and ally.”

“That is particularly true as the effect — and often goal — of BDS boycotts is to strengthen the hand of the Palestinian Liberation Organization, which pays cash stipends to the families of terrorists, and its governmental coalition partner — and terrorist organization — Hamas,” he explained. “The First Amendment does not leave the State powerless to prevent its commerce from furthering such unsavory — and frequently murderous — ends.”

Marc Greendorfer — the founder of the anti-BDS Zachor Legal Institute, which filed an amicus brief supporting Arizona’s appeal — said the attorney general’s argument might represent the first time a government body has acknowledged that the BDS campaign aids actors that engage in or reward terrorism.

“Some of the state anti-BDS laws have noted that BDS is a discriminatory movement that targets Jews, and there has been testimony before Congress … on the ties between supporters of Hamas and supporters of BDS,” he told The Algemeiner, pointing to testimony given in 2016 by Jonathan Schanzer, senior vice president for research at the Foundation for Defense of Democracies think tank.

“[But] this is the first time I’ve seen a state or federal body make the direct connection between BDS and terror,” Greendorfer shared.

The Zachor Legal Institute — whose brief in support of Arizona joined those separately filed by local officials, 10 US states, and several interest groups, including the American Jewish Committee, the Louis D. Brandeis Center, and Agudath Israel of America — has previously called for an investigation of the alleged ties between BDS affiliates and groups blacklisted as terrorist organizations.

Among the membership of the BDS National Committee, Zachor stated in a July letter to the US Justice Department, is a coalition that includes “five currently designated foreign terror organizations,” such as Hamas, Palestinian Islamic Jihad, and the Popular Front for the Liberation of Palestine.

Additionally, “the government of Iran and backers of a number of other foreign designated terror organizations are associated with the formation and continuing operation of the BDS Movement and BDS activity carried out by other organizations,” Zachor maintained.

Reflecting on Brnovich’s argument, Greendorfer said it could be that the alleged affiliation between BDS and terrorist groups “is a topic that is finally being discussed in the open.”

Similar allegations were recently raised by the Tel Aviv-based Shurat HaDin legal group and Israel’s Strategic Affairs Ministry, leading the US fundraising website Donorbox to temporarily suspend the account of the BDS National Committee earlier this month.

Omar Barghouti, a co-founder of the BDS campaign, dismissed the charges as “categorically false” at the time, telling Al Jazeera that Shurat HaDin is “threatening and bullying our partners and service providers in a desperate attempt to undermine our ability to challenge Israel’s regime of apartheid and oppression.”

“While this legal repression may temporarily burden us, it has failed to deter us from continuing our peaceful anti-racist and inclusive struggle for freedom, justice and equality,” he added.