New York Governor Andrew Cuomo feels strongly enough that Israel has been horribly bullied by the growing success of the BDS (boycott, divestment, and sanctions) movement, so he signed an executive order — quite likely unconstitutional in scope — in response.
Right before participating in last Sunday’s Celebrate Israel parade, Cuomo tweeted:
“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.”
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
According to the Executive Order, the state Commissioner will subjectively compile a (black)list using “credible information available to the public” of institutions and companies participating in BDS — from which state entities will be required to, in turn, “divest their money and assets.”
Though the sweeping move immediately garnered praise from the pro-Israel establishment, this quashing of free speech and expression — as well as free commerce — quite likely violates the Constitution. As many outlets quickly pointed out, the BDS movement closely resembles that against South Africa over its Apartheid policies in a number of ways.
As Ryan Cooper wrote for The Week, “Roughly 4.8 million Palestinians live under Israeli rule in the Left Bank and Gaza Strip, yet have no political representation in the Israeli government.” Responding to what many call Israel’s Apartheid, BDS has been gaining steam since its inception in 2005 to “push Israel into giving up the occupation through economic leverage.”
But Cuomo’s oppressively sweeping and subjective EO seeks to punish people for criticizing Israel in a peaceful, effective manner. And whether or not you agree with the BDS movement, understand Cuomo’s personal views on Israel just became the law in New York State — and his complete bypassing the democratic process intimates the Governor’s awareness such a policy wouldn’t be tolerated if put to a popular vote.
Worse, this bullying tactic to enforce political ideology defies all logical legal bounds. In fact, such a move had been previously attempted in Mississippi, as Cooper noted, though was promptly struck down by the Supreme Court. In NAACP v. Claiborne Hardware Company, Justice John Paul Stevens penned the court’s opinion:
“While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful economic activity such as that found in the boycott in this case.”
Not only will New York’s de facto blacklist entail opinion-based judgment concerning which entities rightfully deserve to land there, but the burden of proving otherwise will fall on — you guessed it — those entities. This creates an onus of economic responsibility for those businesses and organizations inaccurately listed, at least in the time needed to appeal.
Astonishingly, Cuomo failed to see the laughable irony in exacting the same method employed by the very movement targeted by his own EO. Further still, as The Free Thought Project previously reported, Cuomo enacted another BDS-style boycott — also eradicating the democratic process through Executive Order — against the State of North Carolina for its draconian “bathroom law.” To the governor’s mind, that law necessitated a boycott because “in a free society the equal rights of all citizens … must be protected and cherished.”
All irony aside, this autocratic maneuvering to engender forced support of any political stance marks a dramatic ignorance of and disrespect for human and constitutional rights through economic bullying.
Perhaps the most alarming development in this haphazard annihilation of free speech, Sen. Chuck Schumer promptly declared his intent to make federal New York’s war against BDS. Unapologetically gushing support for Cuomo’s personal political ideology cum law, Schumer announced to reporters:
“I think what the governor has done is an excellent idea. I think that the state [of New York] should not do any business with any company that participates in BDS, and I am looking at introducing a federal law to do the same thing. BDS is a movement that is just totally unfair to Israel. They hold Israel to one standard and hold the other countries, including those who are sworn enemies to Israel, to another standard.”
No kidding. It appears Schumer managed quite a feat — understanding the point while utterly missing it, in one fell swoop.
As this farcical comedy of horrifically substantial errors gains both praise and notoriety across the country, free speech advocates and constitutional experts have already begun to weigh in. Donna Lieberman, executive director of New York’s ACLU, told The Week in an email,
“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.”
As rights slip away with unprecedented momentum, guarding the most basic right to speech — including the right to speak through financial means — should top the list of priorities. However, autocratically legislating one’s personal political views is wholly untenable in the arena of free speech.
Whether or not you agree with Cuomo’s personal politics is of no consequence in the matter, as such a dictatorial move contradicts one of the most sacred human freedoms. Additionally worth noting, once one politician transposes their personal stance into law, no obstacle will prevent others from enacting similar measures — no matter what they might hold as a personal imperative.
Vendetta, in the meantime, has become law in New York.