Andrew Cuomo's flagrant foul on the Constitution

Israel has a public relations problem — but New York Gov. Andrew Cuomo is here to help.

Roughly 4.8 million Palestinians live under Israeli rule in the West Bank and the Gaza Strip, yet have no political representation in the Israeli government. That has been the case for everyone living in the Palestinian territories since 1967. This has led to a slowly growing storm of condemnation around the globe, culminating in the behind boycott, divestment, and sanctions (BDS) movement, which seeks to push Israel into giving up the occupation through economic leverage.

Cuomo, a fervent Israel partisan, is none too happy with the BDS movement. So before the Celebrate Israel parade last Sunday, he signed an executive order directing all state business to boycott any businesses that have signed up with the BDS movement.

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New York Sen. Chuck Schumer (D) quickly agreed, saying that he would attempt to pass a similar law at the federal level.

This is an egregious violation of elementary free speech principles, and is very likely unconstitutional.

Consider how the BDS campaign works. Citizens, nonprofits, and other groups try to convince various institutions that they should not do business with Israel. They demand corporations to stop doing business there, investors to pull their money out, and states to levy sanctions. (This is exactly how a similar movement worked back in the days of Apartheid in South Africa.)

Attempting to convince individuals and institutions to change their economic behavior is about as anodyne an example of political speech as is possible to imagine. Heck, in other circumstances we call it "advertising." First Amendment jurisprudence contains very strong protections against government repression of political speech — both on the federal and state level.

One cannot say for certain how the Supreme Court might rule on something, of course, but previous precedent is very suggestive. In NAACP vs. Claiborne Hardware Company, the court ruled that the state of Mississippi could not prohibit a peaceful boycott effort against stores as part of a protest against police brutality. Justice John Paul Stevens wrote the opinion, which held: "While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott in this case."

As Donna Lieberman, executive director of the New York ACLU, told The Week via 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."

But absent the resolution of a certain legal challenge, New York State is going to put together a list of pro-BDS "institutions or companies" — and as Glenn Greenwald and Andrew Fishman point out, the burden of proof will be on them to prove they are not BDS supporters. It's worth noting that a similar proposal repeatedly failed in the New York state legislature before Cuomo decided to just implement it by fiat.

Such a proposal is also straightforwardly hypocritical. Here's how Alphonso David, Cuomo's legal counsel, justifies the order:

The entire point of the anti-BDS boycott is to penalize people for engaging in economic activity. It's literally the exact same tactic as BDS itself, but in reverse direction — and it's not the only such New York state policy. Back in March Cuomo issued a ban on "non-essential" state travel to North Carolina. This was in retaliation for that state's discriminatory bathroom policy towards transgender people. It is somewhat less aggressive than a full-blown boycott, but the basic principle is identical: economic punishment for political action.

Now, there is a key difference between the two policies, as North Carolina is a state while the anti-BDS targets are individuals and private groups. The travel ban is likelier to survive legal scrutiny, as the First Amendment protections for the latter are stronger than for the former. But the principle of the thing is the same.

Since it is losing the contest for public opinion, Israel lobbyists and partisans have resorted to legal war and state repression of anti-occupation activists wherever possible. But so long as the occupation continues, the issue will never be truly settled.