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The List: Cuomo’s anti-BDS executive order is a first amendment nightmare

on 39 Comments

On June 5 New York Governor Andrew Cuomo signed into law an executive order aimed at the Boycott, Divestment, and Sanctions (BDS) Movement. BDS is a non-violent economic and political protest against the Israeli occupation of the Palestinian territories.

In Cuomo’s order, which Salon reporter Ben Norton called “McCarthyite,” there is a provision that requires the state to create a list of companies that participate in the BDS movement. The list aims to publicly shame and financially harm those who exercise their First Amendment right of political protest.

And though Cuomo’s order will not stand up to a challenge in court, the list itself will cause extreme harm and damage — and that’s the plan.

Within the next 180 days, the Commissioner of General Services of the state of New York will deliver the initial list of BDS-participating companies to the governor. The list will be placed online for the public’s viewing. Companies are allowed to appeal their placement for 90 days in advance of their placement.

As Glenn Greenwald and Andrew Fishman described it in The Intercept:

Cuomo’s Executive Order requires that one of his Commissioners compile “a list of institutions and companies” which – “either directly or through a parent or subsidiary” – support a boycott. That government list is then posted publicly, and the burden falls on them to prove to the state that they do not, in fact, support such a boycott.

Note — the language Greenwald and Fishman cite in the accompanying image to this paragraph appears to indicate companies have time to appeal their placement prior to public posting, not after.

Once a company is on the list, they can appeal for removal from the list. The list will be updated every 180 days.

Draconian stuff.

Even if the legislation doesn’t survive the inevitable legal challenges on its merits, the creation of such a list will have irreversible consequences.

One of the lingering after-effects of the Hollywood blacklist in the McCarthy era of the 1950s was the difficulty of the wrongly accused to find work, decades after the list had been closed. Despite the efforts of the Hollywood Ten, the breaking of the list did not result in the immediate reinstatement to work of those on the list.

Some would go without work for years due to their association with the blacklist and, by proxy, Communism. Even after the country by and large had rejected the blacklist and McCarthyite scaremongering, the ostracization of those associated with the list remained in place.

It’s for this reason that Cuomo’s legislation is so dangerous.

First Amendment rights of association and political protest are designed specifically to combat government interference. Cuomo’s anti- BDS law is an obvious and blatant violation of those rights. It will be struck down in court.

But if it is not struck down in time, if the courts do not manage to issue a stay on its implementation, or if the NY state bureaucracy can tie up the legal system while putting the order into effect, the list will exist. And once it exists, the damage will have been done.

Even when the law is struck down, the stigma of being associated with this draconian law will linger. Just as those who were on the Hollywood blacklist in the 1950s found it hard to find work for years after the list was broken, so too will businesses that are tied to BDS in NY state find it difficult to survive in the American economy.

Which is exactly the point. Cuomo wants the fear of that stigma to do the work of the law, no matter the outcome in the courts.

This article first appeared on Eoin Higgins’s website.

Eoin Higgins

Eoin Higgins is a writer and historian from upstate New York. He is a graduate of the Masters in History program at Fordham University's Graduate School of Arts and Sciences. His writing can be found at Follow him on twitter @EoinHiggins_

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39 Responses

  1. ritzl on June 7, 2016, 1:03 pm

    There may be some stigma associated with the list, but I think that when this EO is reversed in court the biggest effect by far will be that it will be seen as a badge of courage. More people will buy their products. I know I would.

    The proposed teeth (whatever “divest state resources” means) of this EO are the potential problem for the listees.

    Now if this article is suggesting that some completely illegal coordinated restraint of trade action will be undertaken by anti-Palestinian businesses based on this list, that’s another issue entirely. But there again, if word gets around the business community that the chances are pretty good that any company which ceases operations in Israel of getting capriciously added to this list and therefore exposed to this anti-Palestinian backlash, no one will risk entering the Israeli market in the first place. Just not worth it.

    And the “word” that “gets around” doesn’t even have to be true. Accepted myth (bolstered by the concrete reality of a list generated by the state if NY for the specific purpose) that retaliation WILL occur would have the same diminishing effect.

  2. John Smithson on June 7, 2016, 1:13 pm

    Or maybe those companies on the ‘List’ will enjoy having people flock to them to buy the good and services they provide, as a way to support BDS.

    Never know how this will turn out…

    • ritzl on June 7, 2016, 1:53 pm

      “Never know how this will turn out…”

      Bingo. The coin has been tossed and is still in the air.

      I still can’t get my pea-brain around the fact that so much effort and ballyhoo is being put into a method that at best has a 50% chance of succeeding as intended.

    • Emory Riddle on June 7, 2016, 2:15 pm

      For sure. I would think it a badge of courage to appear on that list. How long does a tiny minority (within the small minority that is Jewish people in America) loyal to a racist foreign nation think it can push everyone around?

      • Egbert on June 7, 2016, 4:47 pm

        How long before someone says of Mr Cuomo:

        “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

    • ritzl on June 7, 2016, 5:45 pm

      What also bothers me about this is that it is so clearly unconstitutional (and makes no sense on the surface) that while we’re all riveted to the Cuomo Show something else is happening out of frame.

      Maybe something significant.

      Is that too paranoid?

  3. Chu on June 7, 2016, 3:24 pm

    Cuomo has overstepped his bounds, but he watches meister Hillary and sees how he can emulate a run for president by placating these corrupting anti-democratic forces with an executive order. Not only in the USA, Crony Zionism is a immense corrupting force in the political world.

    Not sure about Latuff’s comic where Cuomo is getting a ghastly massage from Senator McCarthy, it would be more apt if the image were the WZO or ADL. Alas, not realizing their hypocrisy, the zionists would cry antisemitism at such a comic.

    Is this Cuomo’s first executive order? That would not bode well in a presidential run. It’s basically saying he decides personally how New York businesses will behave toward a supposed ally. Nice move Cuomo – you are one slick guy…

  4. chris_k on June 7, 2016, 3:24 pm

    Imagine if the governor of Mississippi had issued an executive order banning the state from doing business with companies that divested from South Africa before its racial reforms. Whatever people would have said about that governor is true of Cuomo and perhaps worse. But it’s significant that no governor from the Deep South would seriously think of doing that.

    Imagine if Trent Lott had said that that law should be ratified nationally. He had to quit his leadership position because he got tipsy and spoke up for segregation on camera. Certainly, then, Schumer’s statement should impact his quest to be Democratic Senate Leader.

  5. lysias on June 7, 2016, 5:57 pm

    Would people and firms that suffer damage from such a clearly unconstitutional executive order have a right to seek damages from Cuomo and New York State?

  6. xanadou on June 7, 2016, 8:40 pm

    Greenwald and Fishman make a few salient points informed by GG’s experience as civil rights lawyer:

    Ali Abunimah points at the clay feet of Cuomo’s blunder:

    Not least of all, for a politician in the service to a foreign state to create a legal precedent that may damage the inviolability of the US Constitution is not a good sign going forward backwards.

  7. hophmi on June 8, 2016, 12:23 am

    Or this is a sign of exactly what I’ve told all of you many times; outside of your cult, BDS is seen as a repugnant anti-Semitic movement, and the vast majority of decent people reject it.

    • eljay on June 8, 2016, 9:08 am

      || hophmi: Or this is a sign of exactly what I’ve told all of you many times; outside of your cult, BDS is seen as a repugnant anti-Semitic movement, and the vast majority of decent people reject it. ||

      Or BDS is about justice and accountability in Occupied Palestine and your hateful and immoral Zio-supremacist cult – which advocates, engages in, justifies, excuses and defends Jewish supremacism in/and a religion-supremacist “Jewish State” in as much as possible of (Mandate) Palestine – has managed to brainwash the vast majority of decent people into rejecting it.

    • Misterioso on June 8, 2016, 10:32 am

      Utter nonsense.
      Times of Israel – May 24, 2016

      “Dysfunctional Israeli leadership failing utterly in battle against BDS, state watchdog warns

      “Highlighting dismal propaganda performance during 2014 war, comptroller cites lack of overall strategy, absent funding, divisions between ministries, failure to coordinate with IDF.”

      To quote Patrick Martin, Canada’s Globe and Mail correspondent in Israel:

      Globe and Mail, Feb. 23/16

      “Israel is increasingly concerned with the successes of the boycott and divestment efforts. In 2014, foreign direct investment in Israel dropped 46 per cent from the previous year, in part, a United Nations report said, because of BDS efforts.

      “These initiatives are taking hold at North American universities, churches and trade unions, where many institutions are dropping investments in Israel or Israel-connected companies. In Europe where hundreds of academics and entertainers are personally boycotting Israel, major companies such as telecom Orange and water company Veolia are pulling out of Israeli ventures, and some EU governments are putting warning labels on products produced in Israeli West Bank settlements.”
      “Israeli Exports Slump to Seven-year April Low. Harel says weak trade performance to cut 2016 economic growth outlook.”
      By Moti Bassok – May 11, 2016
      “Israel’s deteriorating export performance hit a new low last month, as merchandise exports fell to their lowest April total since 2009, the Central Bureau of Statistics reported on Tuesday….”
      Electronic Intifada – 28 May 2016
      Ireland latest EU state to defend BDS
      Jerusalem Post – 05/26/2016
      “In huge blow to Israel, Netherlands declares BDS ‘free speech’.”
      Electronic Intifada – 31 May 2016
      French court overturns “illegal” ban on BDS event

    • Marnie on June 8, 2016, 11:01 am

      You’ve been told over and over again that outside of your cult, Zionism is seen as a repugnant, racist nationalist ideology that the vast majority of people of conscience reject. GET USED TO IT.

      • hophmi on June 8, 2016, 12:58 pm

        Except that that’s not really true, and my statement is, which is why US-Israel intelligence and security cooperation is at its highest level ever, and most states are passing anti-BDS legislation.

        I know you’ve been victimized by a lot of propaganda, Marnie, but them’s the facts.

      • Marnie on June 8, 2016, 11:33 pm

        I think you’re confusing me with someone else, possibly yourself? The PEOPLE are supporting BDS in huge numbers; it’s to the US gov’t shame they don’t listen to their voters. Sheldon Adelson’s money is only for the fat cats on the top. Don’t think for one minute that everyone is as stupid as you treat them.

    • Talkback on June 8, 2016, 12:06 pm

      hophmi: “Or this is a sign of exactly what I’ve told all of you many times; outside of your cult, BDS is seen as a repugnant anti-Semitic movement, and the vast majority of decent people reject it.”

      Sure, that must be the reason why your repugnant anti-Gentile cult needs laws to enforce it’s oppression not only in Palestine.

      • hophmi on June 8, 2016, 1:00 pm

        My anti-gentile cult? Israel is the safest place for Christians in the Middle East right now. Amazing how this blog does literally nothing to speak out against the genocide against religious minorities Iraq and Syria.

      • Marnie on June 8, 2016, 11:49 pm

        I love it! According to all things christian, Hophni says that the zionist state is the safest place for Christians in the middle east “right now”. How would you like your survival described in those terms?

        Mr. Whataboutery at his finest.

      • Rashers2 on June 9, 2016, 2:47 am

        Re. hophmi’s ludicrous deflection about Israel’s being the safest place in the Middle East for Christians, it’s as untrue as it is irrelevant (well, knock me down with a feather, etc….). Yes, there have been atrocities against Christians, Yazidis, Druze, etc. in Syria & Iraq. Well, there’s a civil war going on in Syria and many people/groups have had atrocities committed against them, including by radical Sunni insurgents given active support by the Most Moral Army in the World’s medical corps in the illegally-occupied Golan. Many other places in the Middle East are safe enough for Christians – where I live, at Easter and Christmas, the local police provide benign crowd-control on public transport and roads near the Roman Catholic church so it’s not exactly an “underground” practice of faith……
        I concede that neither East Jerusalem nor the OWB is in Israel but in those places, Christian churches, some ancient and of immeasurable cultural and historical value, have come under “price tag” attack and been desecrated and vandalised by – guess who? That’s right: illegal, Jewish settlers. You shouldn’t talk through your lower mouth, hophmi, especially when it’s full.

      • Eva Smagacz on June 9, 2016, 6:01 am

        “Israel is the safest place for Christians in Middle East right now”

        Stone throwing attack on Catholics in Israel shows a culture of contempt:

      • Marnie on June 9, 2016, 7:11 am

        Hophni is so full of himself. From Eva’s link:

        “In June 2015 an arson attack damaged the Church of the Multiplication, which is located on the Sea of Galilee where Jesus Christ fed thousands of people through the miraculous multiplication of loaves and fishes.

        Many Christians in Israel are concerned that their position will suffer due to an increase in extremism and a decay in moral and cultural values.”

        Also would mention the hateful vitriol of Bentzi Gob’s full group, Lehava, talking about burning churches. Hophni, this was a real fruitful detraction from the topic at hand though.

      • eljay on June 9, 2016, 8:31 am

        || hophmi: … Amazing how this blog does literally nothing to speak out against the genocide against religious minorities Iraq and Syria. ||

        Amazing how Zio-supremacists routinely defend the unjust and immoral actions of their (war) criminal and religion-supremacist state using the excuse   Murderers exist, so it’s OK to rape.

      • Kay24 on June 9, 2016, 8:47 am

        Aw poor Hoppy too much of Koolaid can do weird things in the mind. The Jewish terrorists at work again, making Christians feel safe in that wonderful democratic nation and it’s stolen lands.

        “NAZARETH, ISRAELFather Matthias Karl hoped to begin rebuilding his shattered church complex on the shores of the Sea of Galilee after Christmas.

        But following an arson attack six months ago that left one Catholic monk hospitalized and caused nearly $1.8 million in damage, the Israeli government, while strongly condemning the incident, has yet to provide promised financial compensation or put the two right-wing Jewish suspects on trial.

        The June assault was the latest and most dramatic sign of tension between Christians in Israel and a growing movement of Jewish extremists who seek to cleanse their nation of religious minorities.

        “The attacks have become more brutal and more aggressive,” said Father Nikodemus Schnabel, a Benedictine monk at the Dormition Abbey on Mount Zion in Jerusalem that has been subject to several attacks. “And we have not been happy with the political response.”

      • hophmi on June 9, 2016, 9:40 am

        Typical. Eva is talking a stone throwing incident in the only place in the Middle East where Christians aren’t getting murdered, as ISIS burns down churches and ethnically cleanses Christians from Iraq and Syria.

      • Talkback on June 9, 2016, 11:09 am

        hophmi: “My anti-gentile cult?”

        … he asks and continues to talk about the alleged safety of Christians, as if the vast majority of Muslim Palestinians don’t even exist. That’s one step towards genocide.

      • oldgeezer on June 9, 2016, 11:45 am

        “Typical. Eva is talking a stone throwing incident in the only place in the Middle East where Christians aren’t getting murdered, as – See more at:

        Stone throwing incident? You make it sound so innocent.

        Stones can kill you know.

        It’s high time for the idf to put a few bullets through the spines or heads of the ringleaders of these terorrists. And toss the rest of the terrorists into jail for 20 years or so.

        Bulldoze the family homes. One can only imagine the vile and horrid indoctrination into violence and hate these children have been raised in.

        Once they see a few of their house demolished and their family lose their property they will think twice about using terror tactics on peace loving christians.

        You are a vile apologist for terrorists.

        I, for one, am not the least bit surprised as you always have been. Just not for those who aren’t members of your tribe.

  8. NickJOCW on June 8, 2016, 3:47 am

    Is there a corresponding procedure for applying to be on the list?

  9. bryan on June 8, 2016, 5:31 am

    This executive order would appear to be as carefully thought out as something scribbled on the back of a fag packet after a boozy night out clubbing. There is no definition of a “subsidiary”. Thus if an individual pension or asset management fund with a brief for ethical investment were to stop investment in companies supporting the occupation, its parent bank or financial institution would presumably be eligible for black-listing? If a student group or perhaps a school of Middle Eastern studies within a University were to hold a conference on BDS where members of the panel and of the audience were to advocate BDS, would the parent university be blacklisted, and if it were a state university, would the parent state be eligible for blacklisting?

    The incredible vagueness of this order appears designed to shut down all debate and enforce totalitarian control within institutions. The only requirement for blacklisting (“credible information available to the public”) would seem to be a perfect charter for the nastiest of letter-writers from organisations like Standwithus to vilify progressive activism.

    Time for Hillary to reach out to Bernie supporters and the rest of the nation by a clear statement that whilst she disapproves of BDS activity and is a very staunch supporter of Israel, she is even more a supporter of liberal democracy and the public’s right to advocate and shape public policy.

    • Philip Munger on June 8, 2016, 10:58 pm

      “This executive order would appear to be as carefully thought out as something scribbled on the back of a fag packet after a boozy night out clubbing.”

      I agree. Not quite 3:00 am cocktail napkin scribbling, but certainly 11:45 pm stuff.

  10. silamcuz on June 8, 2016, 8:48 am

    What a self-defeating move, now more people, who have no interest in Palestine, will be tempted in researching BDS and even participate in it purely as an anti-establishment practice. The wri

  11. Ossinev on June 8, 2016, 12:30 pm

    “the wri”
    I think that you meant to say “the writing is on the wall”.

    The writing will be along the lines of:


    • hophmi on June 8, 2016, 1:01 pm

      Write in big capital letters. Use no punctuation. Send out mass emails at least 12 times a day, because your friends will love that.

      Remember to tell them that supporting hate comes with a price.

      • Philip Munger on June 8, 2016, 11:00 pm

        “Remember to tell them that supporting hate comes with a price.”

        Well said.

  12. DoubleStandard on June 8, 2016, 5:59 pm

    I love how through this entire piece you take it as a given that the executive order will be found unconstitutional.

    Other states have enacted similar anti-BDS provisions—although admittedly through state legislatures, not executive orders—and so far no legal challenges have managed to stand up.

    The reason is simple. The order doesn’t infringe on your 1st Amendment right to a boycott. It simply says that if you actively avoid doing business with Israel, New York won’t do business with you. A company does not have a right to a contract from the state of New York. Refusing to do business with Israel isn’t a form of “speech,” it’s an action that the government has decided is harmful to American interests.

    • MHughes976 on June 9, 2016, 12:11 pm

      A boycott is either speech – an emphatic and vehement show of opinion – or it is action, an attempt to damage the target by more than mere words. If the former, issues of free speech are clearly raised.
      The ‘hate speech’ question arises and the very vehemence of the opinion shown makes it a candidate for hate speech. But are we really and can we seriously consider vehement protests on moral grounds, or even proclaimed to be on moral grounds, to equate naturally with hatred – and even if we did, could we really avoid the thought that some hatred is merited?
      If we exclude ‘hate speech exceptions to freedom’ then we are left with the clear fact that boycotts, if they are speech, ought to be free of legal sanctions such as fines and prison terms. A counter-boycott by private individuals on the other side of the debate must be rightful: they are expressing their abhorrence of our expression of abhorrence. I was saying to ritzl the other day that there’s a lot of sense in his idea that states and governments do not have rights in the way that individuals do. Surely an official expression of abhorrence of opinions is suspect in many ways – for a start it sweeps up and pretends to speak for individuals who disagree. Many NY pensioners might not at all share Cuomo’s sentiments. Even more, it amounts to the use of state power in an attempt to frighten and deter those who in their conscience want to take part in the original boycott, agreed to be legal in itself. So it shouldn’t happen.
      I concede that at this rate we can’t ask public authorities, as distinct from private individuals and organisations, to join our boycott, at least not so long as there are supporters of Israel who have their own right not to be swept up in expressions of opinion they don’t share.
      If boycotts are actions then the case for state counter-boycotts is severely weakened. The state should clearly not use its power to deter actions which are legal and a matter of conscience. The state might just possibly make boycotts illegal and punishable. There would never be consent for this in general, not in the foreseeable future. An exceptional protection for Israel would also be very hard to argue. So the counter-boycott still shouldn’t happen.
      Not that I’d have much confidence in Western legal systems and politicised Supreme Courts. Remember Dred Scott!

  13. MoCHo on June 8, 2016, 9:02 pm

    So nice of Gov. Cuomo to create a list of those who support BDS — that way we can all support those organizations and corporations who believe in justice, no matter where or who the perpetrators of injustice are, no matter how much money and lobby power they have. Oh, and we can also #BOYCOTTNEWYORK.

  14. Stogumber on June 9, 2016, 2:45 am

    Comparisons to McCarthy are erroneous from two reasons.

    First, McCarthy researched treachery, not heresy. The reproach wasn’t different opinion, or political opposition, but acting as an agent for a foreign country.

    Secondly, the First Amendment has been deeply damaged by Civil Rights legislation. Nowadays, it’s quite logical to say that freedom of speech ends where “discrimination” begins – and nobody can with a straight face deny that BDS is “discriminatory”. Perhaps the Left ought to have avoided the ambiguous term “discrimination” from the beginning, but now it’s too late and one has to live with such a weapon which can be used by everyone against everyone. (Like in the Fifties the Leftists had to live with the House Committe for Un-American Activities that originally had been constructed as a weapon against their German-friendly opponents.)

    I feel here a strong sense of leftist invulnerability “we can inflict pain on others, but others cannot inflict pain on us under the same terms”. I suppose that this sense of invulnerability is delusional.

  15. hophmi on June 9, 2016, 9:43 am

    Sony amazing the topsy-turvy world of BDS. They’d rather highlight some stone throwing incident than speak out for the enslavement and genocide of Yazidis in Iraq. BDS is a moral outrage.

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