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Protecting BDS is Protecting Free Speech

Inspired by the South African anti-apartheid movement, BDS is a worldwide non-violent political movement that aims to boycott, divest from, and sanction Israel until it complies with international law and international human rights.[1] In August of 2015, Palestine Legal[2] contributed a blog[3] (“Protecting The Right To Dissent And Boycott”),[4] highlighting a disturbing trend of attempts to pass anti-BDS legislation in various U.S. states.  Anti-BDS bills have been defeated on multiple occasions in New York State and a number of other states.  In the 2015-2016 session of the New York State Assembly, four anti-BDS bills were presented but were not voted on.[5] Recognizing that these bills would not pass, New York Governor Cuomo circumvented the choice of the electorate and issued executive order No. 157, just a few days before the end of the 2015-2016 session.  The Huffington Post reported that Governor Cuomo’s “order comes as at least eight other states across the country have enacted anti-BDS legislation over the last year. But Cuomo’s action marks the first time a governor has acted unilaterally against the movement.”[6] 

Governor Cuomo’s executive order directs all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel.[7]  Additionally, the order requires that one of his commissioners compile “a list of institutions and companies” that — “either directly or through a parent or subsidiary” — support a boycott.  That government list is then posted publicly, and the burden falls on any listed institution or company to prove to the state that it does not, in fact, support such a boycott.[8]  If it fails to meet that burden, the state will be prohibited from conducting any business with it.   Governor Cuomo announced the executive order during a meeting held immediately before he and his staff marched in New York City’s annual Celebrate Israel parade.

Governor Cuomo’s executive order has been denounced by various human rights and civil liberties groups, including the Center for Constitutional Rights, the New York Civil Liberties Union(NYCLU), Jewish Voice for Peace, and CODEPINK Women for Peace. Critics of the order call it unconstitutional and hypocritical.[9]  Civil liberties groups argue that the order is unconstitutional because the Supreme Court has long held that boycotts “to bring about political, social and economic change” are unquestionably protected under the First Amendment.[10] Donna Lieberman, the Executive Director of the NYCLU stated: "Whenever the government creates a blacklist based on political views it raises serious First Amendment concerns, and this is no exception. We will be looking very closely at this executive order."[11]   

In addition to arguing that the order is unconstitutional, Critics of Governor Cuomo’s order also find it hypocritical:

Glenn Greenwald of the Intercept wrote: “Beyond the McCarthyism and profound free speech threat, the stench of hypocrisy of Cuomo and Democrats is suffocating. Just over two months ago, Cuomo banned state officials from traveling to North Carolina in order to support the boycott against that American state in protest over its anti-transgender law. That pro-boycott executive order from Cuomo began by proclaiming that “New York state is a national leader in protecting the civil rights and liberties of all of its citizens” and thus barred “publicly funded travel” to North Carolina.”[12]

Yousef Munayyer of The Nation stated: “It seems Governor Cuomo is a BDS proponent when the rights being defended are not those of Palestinians. And he isn’t alone in this double standard; others who supported the use of BDS tactics in the civil rights struggle or who support it today to advance LGBT rights or fossil-fuel divestment now oppose the use of such tactics to advance Palestinian rights. Why are the human rights of Palestinians less worthy of defense than the rights of others?"[13]