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“If you boycott against Israel, we will boycott you,” New York Gov. Andrew Cuomo told a crowd of supporters on June 5 as they gathered to kick off the city’s annual Celebrate Israel parade. The same day, Cuomo issued a first-of-its-kind executive order prohibiting state agencies from doing business with groups that back the pro-Palestinian boycott, divestment and sanctions (BDS) movement.
This is a chilling development for BDS activists who, for the past decade, have sought to advance Palestinian rights by exerting economic pressure on Israel—a tactic inspired in part by the worldwide divestment campaign that helped topple apartheid in South Africa. Cuomo’s plan to track which entities support BDS, and to prohibit them from receiving state funding, also sends a shiver down the spine of civil liberties groups, who deride the measure as a “blacklist” that endangers free speech and political activity.
Launched in 2005 in response to a call from Palestinian civil society, the BDS campaign has won support from hundreds of U.S. progressive groups, including churches, labor unions and anti-war organizations, as well as celebrities such as comedian Russell Brand and Pink Floyd member Roger Waters. The push for divestment has become one of the most visible and controversial arms of the U.S. Palestinian solidarity movement, but can it survive an onslaught of initiatives aimed at cutting the legs out from under it?
Nada Khader, executive director of the Westchester People’s Action Coalition (WESPAC), a Westchester County, N.Y.-based peace group, worries that fighting Cuomo’s order will divert energy away from proactive organizing efforts, and that other organizations may “feel less comfortable allying” with the BDS movement for fear of losing state funding. The order could conceivably affect entities such as Presbyterian churches, some of which receive New York State funding. In 2014, the Presbyterian Church voted to divest holdings in three companies that do business with Israel.
Still, the rising backlash against BDS is, in one sense, a testament to its growing power. It’s not clear that the tactic has harmed Israel’s overall economic standing, but some companies, including seltzer-maker SodaStream and the cosmetics company Ahava, announced that they would close factories in the occupied West Bank after being targeted by BDS activists. (The companies deny their moves had anything to do with international pressure.) The BDS movement has also pushed a cultural boycott, successfully pressuring artists such as Lauryn Hill to refrain from performing in Israel. All of this advocacy has helped bring attention to Israel’s two-tiered legal system for Palestinians and Jews in the West Bank, as well as punishing assaults on the Gaza Strip that have killed thousands of civilians.
State lawmakers have had BDS in their crosshairs since 2013, when the American Studies Association endorsed a boycott of Israeli academic institutions that discouraged its members from official collaborations with Israeli universities. The following year, New York became the first state to propose legislation that would have reduced or eliminated state funding for universities that subsidized groups supporting the academic boycott, though the bill did not ultimately pass. “I will not allow the enemies of Israel or the Jewish people to gain an inch in New York,” State Senator Jeff Klein, a Democrat from the Bronx who sponsored the bill, said at the time. “The First Amendment protects every organization’s right to speak, but it never requires taxpayers to foot the bill.”
Since then, more than 20 states have passed or are debating anti-BDS measures, ranging from resolutions condemning the movement to bills barring state funding for pro-BDS organizations.
Cuomo’s order, however, marks the first time a governor has unilaterally targeted the BDS movement. Rather than going through the “tedious affair” of passing legislation, he said, he wanted to take “immediate action” on BDS. Organizers worry that this could set a precedent for other governors who could attempt an end-run around state legislatures in order to score political points and curry favor with pro-Israel organizations, which have backed and lobbied for anti-BDS legislation.
In response, pro-Palestine organizers have formed the Freedom to Boycott coalition. On June 15, about 150 activists from Jewish Voice for Peace, Code Pink, Black Lives Matter, Veterans for Peace and other groups rallied outside the governor’s Albany office, holding a Palestinian flag and demanding that he rescind the order. Demonstrators delivered a petition with 13,000 signatures against the order to a Cuomo staffer. Failing an about-face by Cuomo—an unlikely prospect—legal groups have suggested that a lawsuit could be on the horizon.
Asked about the order’s legality, Alphonso David, Cuomo’s legal counsel, told the New Yorker that BDS “is not protected speech. This is conduct that is being advanced to inflict economic harm.” (Cuomo’s office did not respond to requests for comment.)
But the New York Civil Liberties Union, which has no position on BDS, notes that the Supreme Court has previously determined that boycotts are a form of free expression. The group has also expressed concern over the apparent requirement that suspected supporters of BDS provide “evidence” to the contrary to avoid being blacklisted. Other critics point out that the order is vague on what exactly constitutes support for BDS. Is attending a protest enough to land one on the list?
Even some opponents of BDS believe Cuomo’s action is a shade too far.
“Even though I do not support BDS, I am here with you today,” Assembly-member Phil Steck told the Albany rally-goers. “We should not create an exception to the First Amendment for free speech from those who disagree with Israel.”
Looking ahead, Alana Krivo-Kaufman, the East Coast organizer for the pro-BDS group Jewish Voice for Peace, told In These Times that she wants to build opposition across the state by getting more organizations to sign on to the Freedom to Boycott coalition. Making opposition to Cuomo’s order loud and public is key, she said, because state lawmakers typically “see Israel, anti-Semitism, and they say yes” to onerous restrictions.
Radhika Sainath, a staff attorney at the non-profit Palestine Legal, is confident in the case against the BDS ban. “Any attempt to punish entities that engage in First Amendment rights cannot withstand constitutional scrutiny,” she says.
“This establishes a dangerous precedent that is reminiscent of McCarthyism,” Sainath adds. “This attempt is really to scare New Yorkers from engaging in a social justice boycott.”