New York’s Landmark Executive Order and the Battle Against BDS
Emma Dillon, Brandeis Blog
June 15, 2016
On June 5, New York Governor Andrew Cuomo signed into law Executive Order No. 157, directing state agencies and authorities to divest public funds from supporting BDS campaigns against Israel. Governor Cuomo announced the order in a speech to an audience including local Jewish leaders and lawmakers and sent a very strong message. In his speech, which he delivered prior to marching in the “Celebrate Israel” parade in New York City, Gov. Cuomo described the BDS movement as an “economic attack on Israel” and stated, “If you boycott Israel, New York will boycott you.”
NY Governor Andrew M. Cuomo. (Kevin P. Coughlin/Office of Governor Andrew M. Cuomo)
According to Alphonso David, counsel to the Governor, the executive order was meant to send a clear message that “the BDS movement is deplorable” and not meant to discourage debate over Israeli actions in the Middle East.
Cuomo’s order refers to Israel as a critical and invaluable ally of the United States and references the special historical relationship Israel and New York enjoy. It states that the State of New York “unequivocally rejects the BDS campaign and stands firmly with Israel” and that it will not permit its own investment activity to further the BDS campaign in any way, shape, or form, whether directly or indirectly. In the executive order, Gov. Cuomo orders the Commissioner of the Office of General Services to develop a list of institutions and companies that the Commissioner determines, using credible information available to the public, participate in boycott, divestment, or sanctions activity targeting Israel, either directly or indirectly. According to the executive order, “affected state entities” have been directed to divest their money and assets from any investment in any institution or company that is included on the Commissioner’s list, and no further investments in BDS assets shall be made.
The list devised by the Commissioner will be posted on the website of the Office of General Services and updated every 180 days. Prior to being placed on the list, an institution or company will receive written notice and have the opportunity to present the Commissioner with evidence that it does not in fact participate in BDS activity targeting Israel. Likewise, an institution or company that has been included on the list may request removal by submitting evidence that it no longer participates in such activity.
The executive order was signed amidst a recent wave of anti-BDS legislation being taken up at both the state and federal levels. Last summer, the US House of Representatives introduced a bi-partisan Resolution 318 condemning the boycott of Israeli academic institutions or professors, which recognized that boycotting Israel “hinders the possibility of achieving a fair and just solution and a peaceful settlement to the Israeli-Palestinian conflict.” President Obama also signed into law Trade Promotion Authority (TPA) legislation, which contains provisions authored by Congressman Peter Roskam (IL-06), to combat the BDS movement against Israel. These provisions, originally introduced as Roskam’s H.R. 825, the US-Israel Trade and Commercial Enhancement Act, were unanimously adopted into the House and Senate versions of TPA in April 2015. Roskam, co-chair of the House Republican Israel Caucus, referred to the TPA law containing his provisions as “an historic milestone in the fight against Israel’s enemy, as American opposition to insidious efforts to demonize and isolate the Jewish state is now the law of the land,” but noted that this is just the beginning, citing the need to adapt the government’s response as the BDS movement continues to evolve.
On the state level, eight states have passed varying forms of anti-BDS legislation, and more than twenty states have taken up anti-BDS legislation. In April 2015, Tennessee became the first legislature in the nation to formally condemn the BDS movement, characterizing it as “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish State.” South Carolina and Illinois followed soon after with their own anti-BDS legislation, but went a step further than condemning the movement by each state respectively requiring itself by law to divest from companies participating in BDS activities. The pending Ohio bill, H.B. No. 476, would prohibit Ohio state agencies from contracting with companies that boycott or disinvest from Israel, have a binding impact on Ohio government contractors, but would not also prohibit public fund investment in companies boycotting Israel. The Brandeis Center’s Kenneth L. Marcus has explained in testimony why such provisions should be viewed as a reasonable response to the core anti-Semitism of the BDS movement. The fact that BDS is dressed up in the language of human rights does not differentiate it from its Nazi and Arab League predecessors, which also used the rhetoric of their times to draw support for anti-Jewish boycotts.
Anti-BDS legislation has been met with various criticisms. Concerns often center around the First Amendment. Opponents of anti-BDS legislature cite legal experts who argue that claim that any boycott of Israel, Israeli goods, or Israeli persons is protected by the First Amendment, and that the application of state anti-discrimination laws to prohibit or penalize BDS activities is consequently unconstitutional. The argument that the laws are unconstitutional turns on the proposition that participation in political boycotts is protected First Amendment activity, a principle established in the Supreme Court case NAACP v. Claiborne Hardware Co. In the Claiborne Hardware case, local civil rights activists—in response to their local governments’ defiance of the law and perpetuation of anti-black discrimination and in order to apply pressure for compliance with applicable domestic anti-discrimination laws—boycotted businesses that were affiliated with those engaging in discriminatory activities. Because the boycott activity was undertaken on a local level by those directly affected by flagrant violations of enumerated constitutional protections (i.e., Fourteenth Amendment rights) and federal laws, and because the boycott was directed at the local perpetrators of the violations, the Supreme Court found First Amendment protection for the boycotters. However, the right to boycott is not without limitation, and this case should not be taken to stand for a blanket First Amendment protection for any and all boycott activity, especially that which is in violation of US law and policy. Thus, BDS is not automatically protected by the First Amendment. Rather, the constitutionality of anti-BDS legislation will have to be evaluated case by case. For example, concerning the Illinois Act requiring that the state’s pension funds to not invest in boycotting companies, Eugene Kontorovich, a professor of constitutional and international law at Northwestern University notes that,
“State pension funds have long engaged in ‘socially conscious’ investing, avoiding investing in companies on the basis of their environmental, employment or labor practices. The Illinois bill simply adds anti-Israel discrimination to the mix.” Therefore, just as the federal government is not required to “subsidize discrimination” when companies discriminate against one’s race, religion, or sexual orientation, it is also perfectly constitutional for the government to withhold funds from companies that discriminate against Israel, or against any national origin.
Although the constitutionality of passed anti-BDS legislation has yet to be resolved, Kontorovich argues that they are mostly constitutional. He points out that as the legislators who have passed said legislation understand, there is no free speech problem as states have a right to refuse to spend their money on what they view as bigoted or improper conduct. He elaborates that,
“The current wave of state anti-boycott measures do not criminalize or prohibit any conduct, let alone speech. The First Amendment allows states to place conditions on companies that want to do business with them. The Supreme Court has repeatedly held that conditioning government money on compliance with anti-discrimination policies does not violate the First Amendment… Israel boycotts — which target all businesses from a particular country — have the key hallmark of impermissible discrimination: They cut off business to people and companies not because of their own particular conduct, but on the basis of who they are.”
Thus, while boycott activists may claim their mission is to merely object to Israeli government policies, in reality, their boycotts target people and businesses with some Israeli connection, making First Amendment defenses less justifiable.
New York’s new law differs from other states’ anti-BDS legislation, both in its specifications and the way in which it was passed, thus presenting different legal questions that have already stirred much debate. What differentiates the law from other anti-BDS legislation is that, where other states prohibit direct participation in the boycott, this law includes “advocacy” in its definition of BDS activity used to determine which institutions or companies should be included on the Commissioner’s list. The executive order defines the “boycott, divestment, or sanctions activity targeting Israel” as meaning to:
engage in any activity, or promote others to engage in any activity, that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel for purposes of coercing political action by, or imposing policy positions on, the government of Israel (emphasis added).
Furthermore, the use of the executive order is also significant as it marks New York as the first state in which the governor has taken executive action against the BDS movement. In this case, Gov. Cuomo wielded his executive power to overcome what he referred to as the often “tedious affair” that passing legislation presents. Similar bills have been introduced in both houses of the New York Legislature; one passed the New York State Senate while the State Assembly version has been stalled for months. Cuomo chose to take “immediate action” against the BDS movement and challenged other governors to do the same, perhaps setting a precedent for instances where anti-BDS bills are stalled. However, his action has also drawn additional criticism for enacting a measure the legislature did not pass.
Due to these differences, criticism of this order may be more distinct from that of other anti-BDS legislation. For example, the usual First Amendment concerns have been raised, along with the claim that it poses a threat to free speech and political activism. Some publications went so far as to liken it to McCarthyism. However, Kontorovich offered a different analysis, commenting that the measure is mostly constitutional because it is akin to statutes prohibiting discrimination against gays and lesbians. He commented on the “one odd clause” (i.e., the “promote others to engage in any activity” clause) that does not appear in existing anti-BDS laws, cautioning that if it were applied to those who merely engage in advocacy of boycotts, it would cross the crucial line between business conduct that can be regulated and protected speech.
Despite the criticisms, the executive order marks another important step in taking action against the BDS movement. Likewise, even if such state anti-BDS legislation and executive orders face challenges, there exist other legal avenues to combatting BDS and its associated anti-Semitism. A salient example is the Brandeis Center’s lawsuit on behalf of four highly esteemed professors against the American Studies Association (ASA) for its unlawful boycott of Israel, in violation of Washington, D.C. law governing nonprofit organization. Although the lawsuit has only just begun, it has already been credited in part with the dramatic defeat of a resolution calling for the American Anthropological Association (AAA) to boycott Israeli academic institutions, suggesting that the case will have a profound impact in future BDS decisions. Thus, there are significant potential legal options aside from legislation that can be utilized in the future to combat BDS.