Q: What happened in New York?

A: On June 5, 2016, New York Governor Andrew Cuomo signed an Executive Order, EO Number 157, entitled, “Directing State Agencies and Authorities to Divest Public Funds Supporting BDS Campaign Against Israel.”

As an executive order, this statement has the weight of law in New York. No action by the legislature is required and the EO cannot be challenged or overturned by the legislature. As of June 5, 2016, the policy adopted in the EO is, in effect, the law of New York and will remain so unless overturned by the act of a future governor (or, more likely, by a court order, for reasons discussed below).

Q: Does the title of the EO actually reflect what the EO does?

 A: No. The EO’s title gives the misleading impression that the EO does nothing more than make it the policy of New York to refuse to do business with those who formally take part in the BDS Campaign Against Israel. If that were truly the case, the EO’s operative clauses would do two things only: (a) require a review of companies with which New York currently has contracts to determine if any of those companies are supporters of the “BDS Campaign Against Israel,” and take action to divest, accordingly; and (b) establish new vetting requirements to ensure that future contracts are not awarded to companies that are support the “BDS Campaign Against Israel.”  

If that were all that this EO did, the EO would still be objectionable on constitutional grounds. But regardless, that isn’t all this EO does.

Q: What does the EO actually do?

A: The EO mandates the creation and publication of a blacklist of every company in the world that New York’s Commissioner of the Office of General Services believes 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.”

The EO then mandates that:

“All Affected State Entities are hereby directed to divest their money and assets from any investment in any institution or company that is included on the Commissioner’s list pursuant to Section II above.”

and

“No money or assets shall be invested by any Affected State Entity in the future in any institution or company that is included on the Commissioner’s list pursuant to Section II above.”

What could this mean in practice? It could means that if you are a U.S. business owner who is deeply opposed to successive Israeli governments’ policies of building settlements in the West Bank for 49 years, and you thus decide you don’t want to do business in Israel, you may find yourself on the list. Or if you are a U.S. business owner who does not personally engage in boycotts but comes out in principle in favor of any economic pressure on Israel for its policies of, say, administrative detention of Palestinians [detention without due process], you may find yourself on this list.

Q: What are the implications of being on that list?

A: The intent of the EO clearly goes beyond divesting State of New York funds from those supporting the “BDS Campaign Against Israel.”  The intent, rather, is to encourage and facilitate retribution against anyone who engages in economic practices targeting Israel or Israeli policies, toward the goal of chilling/suppressing such constitutionally-protected free speech. It does this by defining such free speech – including the act of merely calling for boycotts – as de facto illegitimate.

And it goes a step further by explicitly defining those undertaking all such acts as “BDS ASSETS” – in effect transforming individuals with rights and freedoms into “properties” of a third party acting without agency or conscience in the furtherance of that third party’s agenda.

Q: Why do you say “constitutionally-protected”?

A: However one may feel about boycotting Israel [which APN opposes] or boycotting settlements [which APN supports], all such boycotts by private individuals and their businesses are personal decisions and fall under the category of constitutionally-protected free speech. Writing in March 2015 about just such laws, then-head of the Anti-Defamation League, Abraham Foxman, summarized the matter succinctly: 

“Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down. A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution.”

Specifically, the EO runs afoul of constitutionally-protected rights and constitutional doctrine and practice in the following ways:

• Free Speech: The U.S. Constitution (Amendment I and Amendment XIV) bars Congress or any state from “abridging the freedom of speech.”  The Supreme Court (most notably in NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) ruled clearly that economic boycott is protected free speech.

• Unconstitutional-conditions: According to the unconstitutional-conditions doctrine, as articulated clearly by the Supreme Court (in Perry v. Sindermann 408 U.S. 593 (1972):

 “For at least a quarter-century, this Court has made clear that, even though a person has no ‘right’ to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible.”

• Vagueness: The “void for vagueness” or “overbroad” doctrine hold that a law is unenforceable if its terms are so vague of overbroad that the average citizen could not be certain what conduct is or is not permitted. The EO clearly falls into this category, with language that is prima facie vague and overbroad (e.g., “any activity,” “promote others,” “coercing political action,” “affected state entities”).

• Chilling Effect: Chilling effect is defined as follows: “In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.” As articulated by Justice Brennan in his dissent on Walker v. City of Birmingham 388 U.S. 307 (1967):

“We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”

 Q: Will the list include those boycotting settlements?

 A: It is clear that the wave of legislation across this country relating to boycotts of Israel – of which this EO is just the most recent iteration – is aimed as much if not more at settlement boycotts than boycotts of Israel (a direct result of increased focus by Europe on policies that “differentiate” between Israel and settlements). This includes legislation pending in the New York State legislature, which explicitly references both Israel and the occupied territories. Bearing this in mind, it is possible that those interpreting/implementing this EO will decide that to “penalize, inflict economic harm on, or otherwise limit commercial relations with Israel” means policies targeting not just Israel but also settlements, based on the argument that businesses operating in settlements are Israeli-owned, Israeli-operated, are organized under Israeli law, and are organically tied into the Israeli economy.

Q: How would this list even be built?

A: Building and maintaining the list mandated under this EO will be a massive task, and an extremely problematic one. It should be noted that the U.S. Federal Government maintains a full-time bureaucracy to track alleged violations of the U.S. ban on compliance with the Arab League Boycott of Israel. Monitoring that ban is not easy, notwithstanding the fact that the definition of what is barred under U.S. law is narrow and clear. The New York EO, in contrast, casts an extraordinarily wide net, in effect sending the New York Commissioner of the Office of General Services out on to trawl the entire globe for companies to include on the new list – a list based on criteria that are (a) subjective, and (b) conflict with constitutionally-protected free speech.

It is worth noting that the New York Office of General Services appears to in no way be in a position to carry out this extraordinary mandate. According to the agency’s website, this office:

 “…has developed expertise in centralizing critical support and service functions leading to more cost-effective government…Some of these services include: Architectural, engineering and construction management services for buildings statewide; Building management, energy saving operations, and maintenance services to 49 major office complexes and buildings statewide; Managing leases of privately held real estate used for state purposes; Facilitating and administering approximately 1,500 centralized procurement contracts for goods, services, and technology needed by state agencies, municipal governments, and educational institutions; Administering a variety of support and distribution services including the state’s alternative fueled vehicles program, interagency mail and freight services, printing and copying services, disposal of surplus state equipment, and distribution of USDA surplus food supplies; Shared administrative services (e.g., human resources and financial management) for 14 state agencies; and Visitors' assistance, tours and maintenance of architectural, historical and art treasures at the Empire State Plaza, the Executive Mansion and the State Capitol.”

The very high costs of undertaking this massive task – to build and maintain in perpetuity a database, the goal of which is to unconstitutionally quash free speech – will be borne by taxpayers. Taxpayers will also bear the costs of defending this EO from the court challenges that will certainly be forthcoming, whether from civil rights organizations or from businesses who find themselves caught up in this anti-free-speech fishing expedition.

Q: So if not this EO, how should people fight BDS?

A:   APN supports a smarter approach to the challenge of BDS against Israel. Such an approach includes:

• Recognizing and rejecting pro-settlement, anti-peace policies that feed the growing support for BDS today, and working publicly and concretely to oppose and change them.

• Rejecting efforts to conflate Israel and the settlements and instead supporting boycotts and recognizing the legitimacy and potential value of activism that squarely targets settlements and the occupation.

• Ceasing efforts to limit free speech. BDS supporters, regardless of their motivations, are entitled to their views and to their legal, non-violent forms of protest, just as opponents of BDS are entitled to challenge and criticize them in ways that do not trample on the First Amendment rights of any party.

• Challenging BDS on its merits – through statements and other public messaging – in order to demonstrate why BDS against Israel is a misguided, counterproductive tactic in the fight to end the occupation, and to illustrate how activism focused on settlements and the occupied territories is a better way to achieve that goal.