The Center for Constitutional Rights, Palestine Legal, and the National Lawyers Guild have engaged in advocacy to oppose legislation in New York that would threaten core First Amendment-protected activity and raise serious due process concerns. While the bills did not pass the state legislature, New York Governor Cuomo signed an executive order on June 5, 2016 that, like the bills, mandated the creation of a blacklist of entities engaging in or promoting boycott, divestment, and sanctions (BDS) against Israel and required state agencies to divest public funds from those on the blacklist. CCR, Jewish Voice for Peace, and Palestine Legal submitted a Freedom of Information Law (FOIL) request to New York State seeking information about the decision-making process behind the executive order on June 21, 2016.
On January 26, 2016, the Center for Constitutional Rights, Palestine Legal, and the National Lawyers Guild sent a memorandum to New York lawmakers regarding anti-boycott bills that were pending in the state legislature. On April 12, 2016, the three groups distributed an updated memorandum to legislators that addressed recent amendments to A8220. On May 3, 2016, they then joined a coalition of over 100 groups to send a letter opposing the bills to all members of the New York Legislature.
The two bills would have mandated the creation of a blacklist of individuals and/or entities that support boycotts of Israel (S6086/A8220A) or “allied” nations (S6378A/A9036), prohibited those on the blacklist from doing business with the state of New York, and required state pension funds to divest from any companies on the blacklist. S6378A passed the Senate in January 2016.
These legislative efforts are part of a growing trend of introducing anti-boycott legislation in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian human rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.
The text of the updated memorandum is below, and below it is the text of the coalition letter.
Subject: Anti-boycott bills:
S6086/Gianaris and A8220A/Lavine
(Relates to purchasing restrictions on persons boycotting Israel and the investment of certain public funds in companies boycotting Israel)
S6378A/Martins and A9036/Weinstein
(Relates to purchasing restrictions on persons boycotting American allies)
Update (4/7/2016): This memorandum has been updated to reflect amendments made to A8220 on March 29, 2016. Despite these amendments, our legal analysis remains unchanged. For more details, see section V of this memorandum.
S6086/A8220A and S6378A/A9036 require the State of New York to create a list of persons1 and entities that express a particular political viewpoint, and then bars New York from doing business with and investing in persons and entities on that list. These bills harken back to the McCarthy era when the state sought to deny the right to earn a livelihood to those who expressed controversial political views. The courts long ago found such McCarthy-era legislation to be at war with the First Amendment.
The viewpoint targeted by these bills is support for a boycott of Israel (S6086/A8220A) and/or “American allies” (S6378A/A9036). Those who support human rights boycotts - like the boycott of Israel - see boycotts as a peaceful means of putting an end to injustice, just as supporters of the Montgomery bus boycott in the 1950s, of the California grape boycott in the 1960s, and of the boycott of apartheid South Africa in the 1980s saw those boycotts as a means of overcoming other forms of injustice. While some may disagree that one or another of those boycotts addressed injustice, just as proponents of these bills presumably disagree with those promoting the Palestinian cause, the law is well settled that participation in and support of such boycotts is a form of political expression fully protected by the United States Constitution.
While people may have differing opinions about the issues pertaining to Israel and Palestine, unfettered debate on issues of public concern is the lifeblood of the First Amendment, and the State of New York should not be in the business of punishing those who line up on one side or the other of such debates.
These bills seek to unconstitutionally punish human rights boycotts of Israel (and other “American allies” in the case of S6378A/A9036) by:
Creating an online blacklist of individuals (excluded from A8220A), non-profit organizations, companies, and other entities that support politically motivated boycotts;
Prohibiting blacklisted individuals and entities from doing business with the state of New York; and
Prohibiting state pension funds from investing in companies engaged in politically motivated boycotts of Israel.
S6086/A8220A and S6378A/A9036 are a blatantly unconstitutional attack on freedom of speech and establish a dangerous precedent reminiscent of McCarthyism.
I. Understanding BDS. The global movement for a campaign to boycott, divest from and sanction (BDS) Israel until it complies with international law and respects Palestinian rights was initiated by Palestinian civil society in 2005, following the example of the struggle against apartheid South Africa. BDS is a nonviolent strategy that allows people of conscience to play an effective role in the Palestinian struggle for freedom, justice and equality in their homeland when all other diplomatic efforts have failed to achieve their rights. Supporters of BDS include South African rights activist Archbishop Desmond Tutu and “The Color Purple” author Alice Walker, among many others.2 Religious institutions, including the United Church of Christ and the Presbyterian Church (USA) have embraced BDS,3 as have many racial justice activists,4 immigrant rights activists, and labor organizations. Most recently, the Connecticut AFL-CIO passed a resolution supporting the BDS movement.5
II. First Amendment Concerns.
- Human rights boycotts are protected First Amendment activities. Boycotts are a constitutionally protected form of speech, association and assembly, and have a long history of being used successfully to address injustice and demand political change. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”6 The Supreme Court has specifically held that advocacy of and support for boycotts “to bring about political, social, and economic change” – like boycotts of Israel – are unquestionably protected under the First Amendment.7
The denial of public contracts and public investment in order to punish speech violates the First Amendment. The State of New York cannot punish individuals, businesses, organizations, and other entities because of their speech and political views. Such actions would violate well-established First Amendment principles.8
Creating a blacklist of boycotters and denying public contracts with and public investment in boycotting entities will have a chilling effect on protected speech, in violation of the First Amendment. It is unprecedented for the state to create a list of individuals and/or entities that support or engage in a First Amendment-protected political activity. Such a list would chill First Amendment-protected activities by requiring persons to renounce such activities before they can be considered beneficiaries of public funds.
III. Due Process Concerns. In addition to violating well-established First Amendment principles, these bills also present serious constitutional problems given the vast and imprecise net that the bills cast with their requirements to create a blacklist, and the practical difficulties of creating and maintaining a blacklist of individuals, non-profit organizations, and/or other entities based on their First Amendment-protected speech. In particular:
Procedural impracticality. These bills require the commissioner to use “credible information available to the public” to create a list of persons and/or entities engaged in boycott activities “intended to inflict economic harm on Israel.” There is no geographic scope to the required list, and the task would create a time-consuming and bureaucratic nightmare that would infringe on individuals’ constitutional due process rights. For example:
The commissioner would be required to give written notice to all individuals and/or entities who will be blacklisted and to “make every effort to avoid” blacklisting errors. How will the commissioner contact blacklisted individuals/entities? What process is afforded to individuals or entities that are erroneously blacklisted? How do individuals and entities challenge blacklisting errors? Who is responsible for reviewing blacklisting errors, and what criteria will they use to make their determinations?
Vagueness. What does the bill actually punish? The average person would not be able to discern what actions would land them on the blacklist. For example: What qualifies as “engaging in actions”? Attending a protest in support of BDS? Encouraging friends to boycott Israel? Signing a petition? Abstaining from buying specific goods?
Overbreadth. The bill’s vagueness would deter constitutionally protected speech by intimidating persons from engaging in actions they think would land them on the blacklist, but that are in fact constitutionally protected speech activities.
These bills will lead to confusion, both on the part of potential bidders, as well as the commissioner, and will likely invite legal challenges.
IV. Iran Divestment. New York law prohibits state contracts and procurement from certain entities doing business in or with Iran. While we take no position on the wisdom of the Iran divestment law, it is important to note its key difference with S6086/A8220A and S6378A/A9036. The Iran divestment law does not penalize individuals/entities for their First Amendment-protected conduct. Rather, it penalizes businesses doing business with a country on the U.S. State Department’s State Sponsors of Terrorism list. S6086/A8220A and S6378A/A9036, on the other hand, penalize individuals and entities who have responded to Palestinian civil society’s nonviolent human rights campaign to boycott, divest from, and sanction Israel due to grave human rights concerns. These bills therefore punish political speech activities, in violation of the First Amendment.
V. Amendments to A8220. On March 29, 2016, Assemblymember Lavine amended A8220. The amendments, reflected in A8220A and enumerated below, do not resolve our legal and policy concerns with the bill.
- Despite deleting the words “politically motivated” from the definition of “boycott Israel” and “boycott activities,” the amended bill still targets core political speech and activities protected by the First Amendment, as described above. If anything, this amendment expands, rather than limits, the scope of boycotts covered by the bill.
- Adding an exemption for “boycotts” that are necessary to comply with applicable laws in a person’s home jurisdiction similarly does not overcome the fundamental problem with this bill, namely, that it infringes on First Amendment-protected activity.
- Removal of “natural persons” from the definition of “person” only removes one outrageous aspect of the bill, but does not address the fact that the bill would still blacklist and punish non-profit organizations, associations, and other entities based on their First Amendment-protected speech.
- Adjustments to the notice and process requirements regarding persons who are blacklisted similarly do not overcome the fundamental constitutional problems described above.
No amendments, whether cosmetic or substantial, can overcome the basic fact that bills that deny public contracts with or public investment in entities that are blacklisted due to First Amendment protected activity, if enacted, would target and violate constitutional protections. The only viable “fix” to these fundamentally flawed bills would be withdrawal of them altogether.
S6086/A8220A and S6378A/A9036 unconstitutionally target core political speech activities and infringe on the freedom to express political beliefs, a fundamental American value. These bills should be withdrawn.
1 As noted in Section V of this memorandum, A8220A was amended to exclude “natural persons” from the definition of “person.”
2 See Palestinian BDS National Committee, Cultural Boycott, http://bdsmovement.net/activecamps/cultural-boycott.
3 See United Church of Christ, UCC votes for divestment, boycotts of companies that profit from occupation of Palestinian territories, June 30, 2015, http://www.ucc.org/news_general_synod_israel_palestine_resolution_06302015.
4 See Ishaan Tharoor, The growing solidarity between #BlackLivesMatter and Palestinian activists, Washington Post, Oct. 15, 2015, https://www.washingtonpost.com/news/worldviews/wp/2015/10/15/the-growing-solidarity- between-blacklivesmatter-and-palestinian-activists/.
5 Ali Abunimah, Connecticut labor federation backs Israel boycott, Electronic Intifada, Nov. 11, 2015, https://electronicintifada.net/blogs/ali-abunimah/connecticut-labor-federation-backs-israel-boycott.
6Connick v. Myers, 461 U.S. 138 (1983).
7 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
8 See O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
Freedom to Boycott Coalition, New York State
Opposition to A.8220-A/S.6086 & A.9036/S.6378-A
Dear Honorable Members of the New York Legislature,
We are writing to strongly oppose the above bills, currently in the Assembly Governmental Operations Committee and the Senate Finance Committee, as well as any similar legislation that creates unconstitutional blacklists. We share deep concerns about unconstitutional attacks on boycotts, a form of protected political speech. We call on you to stop this legislation, and oppose any similar efforts.
This legislation mandates that New York State create a blacklist of individuals and/or entities that exercise their constitutional right to utilize boycott as a form of free speech. Under these bills, those that boycott companies based in Israel or the Occupied Territories would be ineligible to contract with, or receive investment of pension funds from, the State of New York.1
The proposed legislation runs counter to the US Supreme Court decision in NAACP v. Claiborne Hardware Co., which concluded that boycotts constitute a political form of expression that “occupies the highest rung of the hierarchy of First Amendment values.”
If passed, these bills could require that New York utilize the power of the state to:
- Punish, under A.9036/S.6378-A’s broader definition of “allied nation,” those advocating for a boycott of Turkey because it uses U.S. weapons to commit human rights abuses against Kurds, or for advocating for a boycott of Colombia because it uses U.S. weapons to commit atrocities against its citizens.
- Bar United Methodist Churches from contracting with the state to run homeless shelters and soup kitchens because the church supports the boycott of Israeli settlement goods.
- Punish those advocating for a boycott of Israel because it uses U.S. weapons to inflict systemic human rights abuses against Palestinians. It would prevent New York from investing in corporations that have severed their complicity with Israel’s oppression of Palestinians in response to boycott, divestment and sanctions (BDS) campaigns.
Should such a bill become law, it would chill and deter constitutionally protected speech by intimidating people from engaging in political actions for fear of being blacklisted. One of these bills was passed in the NY State Senate the first week of the session with virtually no debate and it must be stopped now.
These measures are dangerous and unconstitutional. No legislation should restrict the rights of New Yorkers to engage in efforts to bring sanctions against a nation engaged in human rights violations.
We ask you to act in accordance with this state’s history of defending free speech and the rights of New Yorkers to engage in peaceful efforts to change policies.
We urge you to make sure none of these proposals advances any further in the New York State Legislature. We are counting on you to defend free speech and reject this new version of McCarthyism.
Signed by the following organizations:
Center for Constitutional Rights
National Lawyers Guild – NYC
NYCLU (Capital Region Chapter)
Peace Action New York State
Peace Action of Staten Island
NY State Council of Churches
United Church of Christ Palestine Israel Network
Presbyterian Peace Fellowship
Israel Palestine Mission Network of the Presbyterian Church (U.S.A.)
American Friends Service Committee Northeast Region
New York Conference, United Church of Christ
Kairos: The Center for Religions, Rights, and Social Justice
Congregations for Justice and Peace
Stony Point Center, Presbyterian Church (U.S.A.)
United Methodist Upper NY Task Force on Peace with Justice in Palestine/Israel
Judson Memorial Church
Park Slope United Methodist Church, Social Action Committee
St. Mary's Episcopal Church, Mohegan Lake
Unitarian Universalists for Justice in the Middle East, New York Chapter
Brooklyn Monthly Meeting Religious Society of Friends (Quakers)
Fifteenth Street Meeting of the Religious Society of Friends (Quakers)
Ithaca Area Episcopal Peace Fellowship
Christians Witnessing for Palestine (Rochester)
Task Force on Israel-Palestine at St. Michael's Church
Jewish Voice for Peace - National
Jewish Voice for Peace - New York City Chapter
Jewish Voice for Peace - Ithaca Chapter
Jewish Voice for Peace - Albany Chapter
Jewish Voice for Peace - Westchester Chapter
Jewish Voice for Peace - Rochester Chapter
JEWS SAY NO!
Jews for Palestinian Right of Return
Jews for Racial & Economic Justice
Arab American Association of New York
Council on American Islamic Relations, New York (CAIR-NY)
American Muslims for Palestine (AMP) NY
American Muslims for Palestine (AMP) NJ
CAAAV - Organizing Asian Communities
North American Climate, Conservation and Environment
West Harlem Progressive Democratic Club
US Campaign to End the Israeli Occupation
US Palestinian Community Network
MENA Solidarity Network-US
Al-Awda New York, The Palestine Right to Return Coalition
American Studies Association
Women and Gender Studies, Hunter College
American Association of University Professors - NYU Chapter
National Economic & Social Rights Initiative
Open University Project, Columbia University
Adalah-NY: the New York Campaign for the Boycott of Israel
U.S. Campaign for the Academic and Cultural Boycott of Israel
Queers Against Israeli Apartheid
CUNY 4 Palestine
Labor for Palestine
Brooklyn For Peace
Fort Greene Peace
Veterans For Peace - NYC Chapter 34
Green Party of Nassau County
Genesee Valley Citizens for Peace
North Manhattan Neighbors for Peace and Justice
Peace Action at Hobart and William Smith Colleges
Peace Action & Education (Rochester)
Peace Action Geneseo
Palestinian Rights Committee of the Capital District
Western New York Peace Center
War Resisters League
CODEPINK New York
Concerned Families of Westchester
Committee for Open Discussion of Zionism
Park Slope Food Coop for Boycott, Divestment and Sanctions
Metro NY Committees of Correspondence for Democracy & Socialism
Lynne Stewart Organization
Syracuse Peace Council
Democratizing Knowledge Collective
Ithaca Democratic Socialists of America
Ithaca Showing Up for Racial Justice
Showing Up for Racial Justice NYC
New Abolitionist Movement
Middle East Crisis Response (MECR)
Columbia Students for Justice in Palestine
Cornell Students for Justice in Palestine
Hunter College Students for Justice in Palestine
Palestine Solidarity Alliance of Hunter College
Students for Justice in Palestine at the College of Staten Island
Saint Joseph's College Students for Justice in Palestine
New School Students for Justice in Palestine
NYC Students for Justice in Palestine
Vassar College Students for Justice in Palestine
Vassar College Drone Initiative
Vassar Grassroots Alliance for Alternative Politics (GAAP)
Samidoun Palestinian Prisoner Solidarity Network
International Socialist Organization
Green Party, U.S.
Manhattan Green Party
Granny Peace Brigade
Women of a Certain Age
Women in Black, Union Square
Women In Black, Washington Heights
Women in Black, New Paltz
Women’s Organizing Network (NYC)
New York Association for Gender Rights Advocacy (NYAGRA)
1 The broader definition of “allied nation” in A.9036/S.6378-A specifies Israel, as well as any country that is a member of the North Atlantic Treaty Organization; any country that is a signatory of the Southeast Asia Treaty of 1954; any country, other than Venezuela, that is a signatory of the Rio Treaty of 1947; and Ireland, Japan, and The Republic of Korea.