New York Anti-BDS Bill Would Limit Freedom of Speech for Any Critics of US Allies

In an attempt to silence the growing social movement that seeks to use Boycotts, Divestment, and Sanctions (BDS) to protest Israeli violations of Palestine human rights, the New York State Senate has passed a sweeping bill that would insulate “US allies” from boycotts. This bill comes as several other states consider similar anti-boycott legislation (including Illinois and South Carolina, where bills have passed, and California, Florida, and Maryland where bills are being considered). The New York bill takes a novel approach. In order to avoid being criticized for singling out one viewpoint for censure, the bill prohibits the state from doing business with any people or companies that are boycotting any of approximately 52 “US allies” (see note).  As a result, a number of social movements could be ensnared in the New York State Legislature’s political repression.

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For example, both Japan and Canada are “US allies” under the bill, meaning that boycotts by animal welfare groups of those two countries over whaling and the clubbing of seals would be “boycotts of allied nations.” France is also a US ally under the bill, meaning boycotts of the country over its refusal to support the US invasion of Iraq would also have been a boycott of an “allied nation.”

Repeated Efforts to Subdue BDS

Two years ago, after the American Studies Association (ASA) voted to boycott Israeli state educational institutions complicit in the violation of Palestinian rights, many state legislatures, and even the US Congress, took up efforts to penalize the ASA, as well as the Native Americans Studies Association and Asian American Studies Association, for their political speech. These bills took a variety of forms, but they generally involved a prohibition for state schools from purchasing institutional membership in these academic associations or paying for individual faculty members’ membership, conference registration fees, or even travel to a conference of such an organization. The penalties ranged from a partial or total loss of funding for the school in question.

Even the most ardent opponents of BDS, such as AIPAC and the ADL, refused to support these measures on the grounds that they were blatantly unconstitutional. After successful organizing campaigns led by coalitions of free speech activists, Palestinian human rights advocates, and in some cases teachers’ and professors’ unions, these bills were defeated.

Now, about two years later, a new wave of anti-BDS bills is emerging. These bills generally seek to do two things: to prohibit the state from contracting with persons (including not just actual persons, but legal persons like corporations) who are participating in the BDS movement, and to bar states from investing their pension funds in companies that participate in the BDS movement.

These latest anti-BDS bills, like their predecessors aimed at academic organizations, are blatantly unconstitutional.

The Supreme Court has ruled that boycotts for political, economic, and social change are political speech and thus receive the highest level of protection under First Amendment. State contracts or investment are a state benefit. The state cannot deny benefits based on the political speech of the intended recipient. Furthermore, the state cannot discriminate against particular viewpoints. If the state was to enact a policy of granting contracts to companies supportive of Israel’s policies towards the Palestinian people and denying them to companies supportive of Palestinian human rights advocacy they would be engaged in blatant viewpoint discrimination. Given that anti-BDS bills either require the suppression of political speech – that is target individuals for engaging in boycotts – or single out only boycotts in support of Palestinian human rights, such bills are unconstitutional.

New York

New York became one of many states with anti-BDS bill pending when S6086/A8220 was introduced into the New York State Legislature. This bill would have mandated the creation of a blacklist, using publicly available information, of persons, including corporations, boycotting Israel. The state would have been barred from contracting with or investing their state pension fund in these “persons.”

While many civil liberties and Palestinian human rights activists were focused on this bill, out of nowhere a second bill emerged and quickly passed in the New York State Senate. S6378A/A9036 has similar provisions concerning state contracts and investment as the previous bill, but with one major difference — instead of just singling out Israel for protection from free speech, the bill prohibits the state from contracting with or investing its pension fund in persons boycotting “allied nations” of the US.

Make no mistake about it this is an anti-BDS bill. Upon its passage it was widely reported in the media as being as being an anti-BDS bill and New York State Senate Majority leader John J. Flanagan issued a statement about the bill that referred to its prohibitions as being against boycotting “Israel and other allied nations.” No “other allied nations” were specified beyond Israel.

In an attempt to crush the BDS movement, opponents are willing to rob New Yorkers of a broad range of political persuasions of their free speech rights. While both bills are intolerable, unconstitutional, and part of an attempt at repressing the same social movement, the latter demonstrates an utter disregard for free speech and the extreme lengths to which some New York politicians are willing to go to repress the BDS movement.

“Instead of protecting and advancing civil and human rights, our elected officials in Albany are taking steps to punish First Amendment-protected activity and blacklist human rights activists around the world,” said Palestine Legal Staff Attorney Rahul Saksena. “The lawmakers who support these bills are not only out-of-touch with the growing movement to boycott, divest from, and sanction Israel, they are also out-of-touch with the US Constitution.”

“Allied Nations”

There is nothing apolitical about who is considered an “allied nation” of the US. Discussions about who our allies should or should not be are contentious debates about foreign policy. In short, they are very type of political speech and robust debate that the First Amendment is meant to protect. There is no requirement that every US citizen agree with the US government’s foreign policy or refrain from publicly dissenting. While animal welfare activists’ boycotts of Canada and Japan are not necessarily dissent about US foreign policy per se (though are no less protected by the First Amendment than if they were), many boycotts are about US foreign policy. One of the reasons activists resort to international human rights boycotts, including in the BDS movement, is because they feel their own government has failed to act in accordance with their values and that boycotts give them an opportunity to voice their own opinions on international affairs. The New York bill would take away this important method of dissent.

Boycotts of “allied nations” also help change US foreign policy. In the past, the US considered both Apartheid South Africa and the military junta of General Augusto Pinochet in Chile, allies. Responding to calls from the African National Congress and the Worker’s United Center of Chile, international solidarity activists boycotted South Africa and Chile. In many cases, these boycotts became the main nexus of organizing solidarity campaigns. In the United States, grassroots solidarity movements were able to alter US foreign policy towards both Apartheid South Africa and military junta of General Augusto Pinochet in Chile.

As a result, these early boycotters are today remembered as human rights pioneers, which illustrates why the freedom to boycott US “allies” is vital to a robust democracy. Imagine if a law like the one proposed by New York was in place in the 1960s and 1970s and activist against Apartheid South Africa and the military junta of General Augusto Pinochet in Chile were targeted.

McCarthyism

In a legislative memorandum opposed to both proposed New York anti-BDS bills, Palestine Legal stated, “These bills harken back to the McCarthy era when the state sought to deny the right to earn a livelihood to those who express controversial political views.”

The comparison to McCarthyism is correct. Dissent NewsWire has long reported on a coordinated effort to suppress Palestinian human rights advocacy. This effort has taken a number of forms including repression on college campuses, targeting of activists by law enforcement, and anti-BDS bills. McCarthyism cannot merely be described as an overzealous reaction to a real or imagined national security threat that went too far and encroached on too many liberties. McCarthyism was an attempt to crush emerging progressive movements, especially civil rights and labor movements. As explained in a previous article on the Dissent NewsWire:

McCarthyism was not just about censoring political ideas, but chilling speech broadly by making examples of those with political heterodoxies by promoting their complete alienation from civil society. McCarthyism did not just seek to ban books about Marx, but make sure those with the wrong political views could not find public or private employment, receive certain government benefits, and denied passports. Subversive organizations were barred from renting hotels.

The bills, as Palestine Legal points out, attempt to deny a livelihood to Palestinian human rights advocates. This is exactly the same sort of “complete alienation from civil society” that was the hallmark of McCarthyism.

Take Action!

If you are a New York State resident, please email your NY Assembly Members to voice your opposition.