Gov. Cuomo’s BDS Blacklist Is an Affront to Free Expression

New York Gov. Andrew Cuomo signed an executive order this week requiring state agencies and authorities to divest from any company or institution that supports the Boycotts, Divestment, and Sanctions movement targeting Israel. The order not only threatens to punish constitutionally protected political speech but also requires the state of New York to create a blacklist of allies of the movement, which BDS supporters describe as an effort to ensure human rights for Palestinians.

“It’s very simple: If you boycott against Israel, New York will boycott you,” Cuomo said when he announced the order.

The directive requires all agencies and departments over which the governor has executive authority as well as certain public benefit corporations, public authorities, boards, and commissions to divest funds from any company or institution supporting BDS. The entities are also banned from investing in those companies in the future.

The order itself makes clear that the activity the governor wants to punish is political in nature. But, as the Supreme Court made clear, government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression.

Perhaps just as troubling, Cuomo also directs the commissioner of the Office of General Services to create a list of companies or entities that support BDS and to publish that list online. Suspected supporters would have to provide “evidence” that they don’t in fact back BDS in order to avoid being blacklisted.

Creating a government blacklist that imposes state sanctions based on political beliefs raises serious First Amendment concerns, and this is no exception.

To be sure, Cuomo is hardly the first public official to take issue with BDS. The governor’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.

To be clear, the New York Civil Liberties Union has taken no position on BDS itself. But one needn’t be a supporter of the movement to understand the dangers associated with the government penalizing the exercise of political speech it disagrees with.

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JSJones

But lets say the target was not BDS, but instead the KKK... Would the ACLU protest it the??? Even if the free speech included "hate" speech?

Anonymous

Actually, yes, the ACLU has defended cases involving racists and the KKK, who are also protected by the 1st amendment. Besides that though, there's simply no comparison between the KKK and a nonviolent movement for racial equality and human rights like BDS.

Anonymous

They have defended the KKK's right to free speech quite frequently so probably?

Anonymous

Most likely yes; the ACLU has defended the KKK's right to free speach in the past.
https://www.aclu.org/news/aclu-em-defends-kkks-right-free-speech

Anonymous

Yeah actually. They would. The ACLU was pivotal in several cases protecting "hate speech".

Anonymous

They may claim to be a "non-violent" movement but their rhetoric of support for violence and bullying tactics on campus push that definition to its breaking point.

Anonymous

The cases in which the ACLU defended the KKK's right to march are quite famous, actually.

Anonymous

Let us also understand the sympathies of the questioner: are you really wanting to equate an organization protesting the actions of groups like the KKK with the KKK?

Anonymous

The ACLU has defended not only the KKK but the NAzi party's right to march in Skookie Ill. too. While it may be distasteful in many cases they do (ACLU) defends everyone's right to free specch and expression even yours.

Bruce Shephard

People are responding to this comment saying the ACLU would fight against anti-KKK efforts, but where was the ACLU when multiple states now have placed bans on spending State money or traveling to Indiana?

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