Through an executive order, New York Gov. Andrew Cuomo (D) is going after a peaceful boycott movement fighting Israeli occupation — and many critics are worried his effort will seriously threaten free speech.
Cuomo declared that the order sends a strong message against the “hateful, intolerant campaign” of the Boycott, Divestment, and Sanctions (BDS) Movement — 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. But many are concerned that the executive order goes a step too far.
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 be 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 or else face repercussions, and it punishes companies on the basis of their political beliefs.
I am signing an Executive Order that says very clearly we are against the BDS movement. If you boycott Israel, New York will boycott you.
— Andrew Cuomo (@NYGovCuomo) June 5, 2016
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. It also follows a failed attempt by the New York state legislature to pass similar legislation seeking to create a public list of companies involved in the BDS campaign. With the order, Cuomo has bypassed the state legislature to enact a law that many have said is violating the First Amendment.
In April, the New York Civil Liberties Union said the proposed legislation was “beyond what is constitutionally permissible.”
“The Supreme Court has clearly established that First Amendment protections apply to politically-motivated economic boycotts aimed at influencing public policy and advancing social change,” NYCLU noted. “The Court has also ruled that the Constitution prohibits government from conditioning eligibility for public contracts upon the political affiliation of those bidding for a contract. To legislators questioning whether this scheme is constitutional, the answer is no.”
Rebecca Vilkomerson, the Executive Director of Jewish Voice for Peace, called the Cuomo’s order “a McCarthyite attack on a movement for justice” in a statement on Sunday.
“Boycotts have long been a tactic of social justice movement to bring about urgently needed change for a more just and equal society, and the movement for Palestinian rights should not be singled out,” she said. This executive order shows how out of touch the political leadership is with the growing numbers of Americans who support the use of nonviolent tactics to achieve freedom and equality for Palestinians.”
Palestine Legal, a legal organization that works to protect the rights of pro-Palestinian activists, similarly said the order is “a blatantly unconstitutional attack on freedom of speech and establishes a dangerous precedent reminiscent of McCarthyism.”
Cuomo’s executive order may be the most recent infringement on free speech when it comes to pro-Palestinian activism — but it isn’t the first. In recent years, one of the greatest threats to free speech in the West has been the censorship of those critical of the Israeli occupation. In the United States, at least 20 states and two local governments have passed or are considering legislation targeting the BDS movement.