The executive order recently signed by New York Governor Andrew Cuomo directing all state business to boycott any businesses that have signed up with the Boycott, Divestment and Sanctions (BDS) movement is a clear violation of free speech principles and could be unconstitutional.
The executive order requires the New York State Office of General Services to create a blacklist of institutions and companies involved in the BDS movement “using credible information available to the public” and make that list available to everyone online. All state agencies will be required to divest from such companies, which will have to submit written evidence to appeal to be removed from the list.
Regardless of one’s position on BDS, the order could be concerning because it ultimately requires the blacklisted institutions to prove their own innocence - the burden of proof will be on them to prove they are not BDS supporters - or else face repercussions, and it punishes companies on the basis of their political beliefs. This is an effort that could seriously threaten free speech.
Cuomo declared that the order sends a strong message against the “hateful, intolerant campaign of the BDS movement”. But the order has received criticism from a variety of groups — including the New York Civil Liberties Union, the Center for Constitutional Rights and Jewish Voice for Peace — because of the serious threat it poses to free speech and political activism.
Cuomo is going after a peaceful boycott movement fighting Israeli occupation. Consider how the BDS campaign works. Citizens, nonprofits, and other groups try to convince various institutions that they should not do business with Israel. They urge corporations to stop doing business there, investors to pull their money out, and in the US, states to levy sanctions.
Attempting to convince individuals and institutions to change their economic behavior is about as tame an example of political speech as is possible to imagine. No one should face legal recriminations for expressing an opinion that is supportive of BDS, or for encouraging others to participate in BDS activities. Political speech in the US is clearly protected by the Constitution.
Since they are losing the contest for public opinion, Israel lobbyists and partisans in America are resorting to legal war and state repression of anti-occupation activists wherever possible. Cuomo’s executive order shows how out of touch the political leadership in the US is with the growing number of Americans who support the use of nonviolent tactics to achieve freedom and equality for Palestinians.
Whenever the US government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception. There could be New York state employees right now poring over the Internet for pro-BDS Facebook posts, tweets and news articles, and blacklisting individuals based on their political viewpoints.
Cuomo’s executive order is the first of its kind in the US and by the governor of one of America’s most important and influential states. But Cuomo has bypassed the state legislature to enact a law that many say is violating the First Amendment and goes beyond what is constitutionally permissible.
BDS is a non-violent grassroots movement that first began in 2005 and places economic and political pressure on Israel to acknowledge Palestinian rights and end its illegal occupation of Palestinian territories.
The entire point of BDS is to deter people, companies and associations from engaging in economic activity with Israel, maybe even help penalize them. New York’s executive order is literally the exact same tactic as BDS itself, but in reverse.
