The Supreme Court has made it clear that government can’t punish entities on the basis of free expression, such as boycotts.
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.