A government blacklist aimed at political beliefs — NYCLU and UCC come out against Cuomo’s BDS order

Last Sunday NY Governor Andrew Cuomo signed an executive order barring state business with groups that advocate for BDS, the boycott, divestment and sanctions movement aimed at Israel. Here are two of the latest statements opposing the order as a limitation on free speech and a blacklist of groups with dissident views. First the New York Civil Liberties Union. Then the United Church of Christ. 

New York Civil Liberties Union statement, published by Simon McCormack, communications officer:

New York Gov. Andrew Cuomo signed an executive order this week requiring state agencies and authorities to divest from any company or institution that supports the Boycotts, Divestment, and Sanctions movement targeting Israel. The order not only threatens to punish constitutionally protected political speech but also requires the state of New York to create a blacklist of allies of the movement, which BDS supporters describe as an effort to ensure human rights for Palestinians.

“It’s very simple: If you boycott against Israel, New York will boycott you,”Cuomo said when he announced the order.

The directive requires all agencies and departments over which the governor has executive authority as well as certain public benefit corporations, public authorities, boards, and commissions to divest funds from any company or institution supporting BDS. The entities are also banned from investing in those companies in the future.

The order itself makes clear that the activity the governor wants to punish is political in nature. But, as the Supreme Court made clear, government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression.

Perhaps just as troubling, Cuomo also directs the commissioner of the Office of General Services to create a list of companies or entities that support BDS and to publish that list online. Suspected supporters would have to provide “evidence” that they don’t in fact back BDS in order to avoid being blacklisted.

Creating a government blacklist that imposes state sanctions based on political beliefs raises serious First Amendment concerns, and this is no exception.

To be sure, Cuomo is hardly the first public official to take issue with BDS. The governor’s order comes as at least eight other states across the country have enacted anti-BDS legislation over the last year. But Cuomo’s action marks the first time a governor has acted unilaterally against the movement.

To be clear, the New York Civil Liberties Union has taken no position on BDS itself. But one needn’t be a supporter of the movement to understand the dangers associated with the government penalizing the exercise of political speech it disagrees with.

And this is the statement from the United Church of Christ leaders. Note that the UCC voted last June to divest from companies profiting from the Israeli occupation.  

Prompted by New York Governor Andrew Cuomo’s plan to halt state business with companies that back a boycott of Israel, and the growing interest in several state legislatures in criminalizing the Boycott, Divestment and Sanction movement, the national officers of the United Church of Christ are speaking out against what they see as an infringement of First Amendment rights.

Here is the text of their statement:

New York Governor Andrew Cuomo signed an executive order this week calling on his state’s agencies to boycott and divest from any entity that participates in the Boycott, Divestment, and Sanctions movement related to Israel/Palestine. The governor’s action bypasses the New York legislature. But in seven states, initiatives to criminalize this targeted movement have already been adopted by state legislatures, and thirteen more are yet to be considered (including New York), according to the Jerusalem Post—this with the US Congress’s encouragement.

The United Church of Christ has actively supported human rights campaigns, sometimes through consumer boycotts and even divestment of companies that have profited from injustice. Most recently, the UCC Board of Directors endorsed a boycott of Wendy’s for not joining the Fair Food Program—refusing to pay a fair wage to Immokalee farm workers in Florida to pick tomatoes. Last summer, the UCC adopted a resolution at its General Synod calling for divestment from “companies that profit from or that are complicit in violations of human rights arising from the occupation of the Palestinian Territories by the state of Israel,” and to “boycott goods produced in or using the facilities of illegal settlements located in the West Bank.” While not a full endorsement of Palestinian civil society’s BDS Movement, the UCC’s action clearly supports one of that movement’s calls—an end to Israeli occupation of Palestinian lands.

The UCC is deeply concerned about the attempts by state legislatures to stifle consumer boycott and responsible investment as expressions of free speech—guaranteed by the U.S. Constitution’s First Amendment. The UCC remains committed to seeking justice and peace for Israelis and Palestinians, to working to support bringing an end to Israeli occupation of the West Bank, and to using non-violent tactics—including economic leverage—to do so.

We call upon our elected officials at all levels of government to uphold the Constitutional right of free speech, in all its forms, including the right to use economic measures to bring change; we also call on our members, and allies in the quest for justice and peace for Palestinians and Israelis, to hold their elected officials accountable to that principle.

The National Officers of the United Church of Christ,

Rev. John Dorhauer
General Minister and President

Rev. James Moos
Executive Minister, Wider Church Ministries

Rev. Traci Blackmon
Acting Executive Minister, Justice and Witness Ministries