Civil rights boycotts are a form of protected First Amendment expression because they are, too often, the last peaceful means available to an oppressed people and their supporters in calling for justice.
On June 5, 2016, New York governor Andrew Cuomo signed an executive order mandating that agencies under his control boycott organizations and businesses in support of the Boycott, Divestment & Sanctions (BDS) movement—a peaceful, non-violent means of protesting Israeli occupation of Palestinian lands, controversial governmental policies and laws which segregate and discriminate against Palestinians living within the Occupied Palestinian Territories (OPT) and Israel-proper based on race and religion (the definition of Apartheid) and war crimes committed in retaliation for terrorist strikes.
“If you boycott Israel, New York will boycott you,” Cuomo wrote in a disturbing Washington Post op-ed that reveals just how stacked the deck of American-support is against Palestinians and how empty the “peace process” actually is. “Indeed, a new front has opened in the fight against Israel’s existence. Just as the U.S.-Israel relationship has developed a robust and burgeoning commercial dimension, the threats against Israel have acquired one. There are those who seek to weaken and undermine Israel through the politics of discrimination, hatred and fear.”
Without going too much into the neoliberal foundations of modern Zionism, there are still at least three major things wrong with mandating that the State of New York give supporters of BDS, what I’m sure Cuomo sees as, a taste of their own medicine. I tried to summarize them in the above cartoon using a Groucho Marx-style quip.
1) Political and human rights boycotts, like the BDS movement, are a protected form of protest guaranteed by the First Amendment. In NAACP v. Claiborne Hardware Co. (1982), a local branch of the NAACP boycotted white merchants in Claiborne County, Mississippi, to pressure elected officials to adopt racial justice measures. The merchants retaliated by suing the NAACP for interference with business. Ultimately, the Supreme Court found that “the boycott clearly involved constitutionally protected activity” through which the NAACP “sought to bring about political, social, and economic change.” Justice Stevens concluded that the civil rights boycott constituted a political form of expression under the speech, assembly, association and petition clauses of the First Amendment.
The New York Attorney General will probably try to argue that the state has a right to boycott as well. The State of New York might not be suing BDS supporters, as white businesses did in Claiborne County, but I would argue that creating a blacklist and targeting citizens for their political beliefs with another boycott counts as a prohibitive measure against those citizen’s constitutionally protected right to express their beliefs through boycott.
Supporters of the BDS movement, whether you agree with them or not, should not be punished by a governmental entity, whether local, state or federal, for exercising a First Amendment right. The BDS movement clearly fits within that definition as it, too, seeks to bring about a political, social and economic change. It doesn’t matter that you disagree with them, they’re not committing a crime.
The actions of the BDS movement are no different than the actions taken by many entities around the world—including our own government—during the boycott of South Africa for its Apartheid regime and racist violence against Black South Africans. Imagine if the U.S.-South Africa relationship had had the same “robust and burgeoning commercial dimension” that the U.S.-Israel one does. Imagine if South Africa had its own neoliberal bankroll in the United States donating vast sums of money to an American political party (the Jewish Telegraphic Agency itself estimates that the Democratic Party received between one- and two-thirds of its money during the 2008 election cycle from pro-Israel donors—this could be an ill-conceived brag, but there’s no doubt that Deborah Wasserman-Schultz was made chair of the DNC to court Zionist money, so it might not be too far off). Nelson Mandela might still be in prison if an equally powerful South African lobby had been donating to the Republican Party while President H.W. Bush was in the oval office.
2) Creating a blacklist of companies, organizations and influential individuals that support the BDS cause is disturbingly McCarthy-esque. Even if you don’t agree that Israel’s treatment of Palestinians in the OPT and Israel-proper constitutes major human rights violations, do we really want the governor of an American state adding the names of law-abiding citizens to a blacklist of any kind? This is an incredibly dangerous precedent to set and is the number one reason this executive order needs to be struck down in court.
3) And finally, the State of New York is currently boycotting the State of North Carolina as we speak because of North Carolina’s transgender-targeting, discriminatory bathroom law—and good! That law is morally reprehensible. But it’s just a little hypocritical for Gov. Cuomo to go after BDS supporters when his own government is engaged in the exact same kind of protest.
The bottom line is that this executive order, and the ongoing legislative movements in several other states to take similar action, is about money, and it targets a peaceful movement by citizens expressing their First Amendment right to dissent and to refuse to engage economically with a State with whom they morally disagree using McCarthy-style tactics. It should never be the State’s job, nor will it ever be the State’s right, to dictate, through any means, what its citizens (and, in this case, by extension non-profits and businesses) think—especially about a foreign country. And it ought never to be the State’s purview to take debilitating or restrictive action against its citizens in retaliation for exercising a First Amendment right within the law.
Civil rights boycotts were determined to be a form of protected First Amendment expression because they are, too often, the last tool available to an oppressed people and their supporters. Shame on the State of New York for punishing those people at the behest of big money interests.
Evelyn Beatrice Hall wrote, “I disapprove of what you say, but I will defend to the death your right to say it.” Whatever happened to that tenant of Freedom of Speech?
Note on the cartoon: I chose to depict Groucho Marx as the BDS supporter to be grilled by Cuomo-as-McCarthy mostly because I felt like the responding quip summarizing my points was in the vein of his actual style of comedy. However, I want to make it clear that I am aware that Julius Henry Marx was of German-Jewish descent. Being anti-Zionist is not the same as being anti-Jewish, and I’d like to think that someone as intelligent and critical as Groucho would have been fully aware of that. Whether or not he would have supported the BDS movement is not important, but I’d like to think that he would have, as have many other conscious and caring individuals of Jewish faith and/or descent.