The Daily Outrage

The CCR blog

Lawmakers should ferociously defend - not limit - our right to protest

Last Wednesday, as thousands of New Yorkers gathered in Central Park for an International Women’s Day demonstration, New York State Senators were hard at work in Albany, limiting our right to protest.

With almost no notice, no committee hearing, and no opportunity for public input or debate, the State Senate fast-tracked three anti-protest bills aimed at silencing and punishing Palestinian human rights activists. The three bills passed with support from every senate Republican, every member of the breakaway Independent Democratic Caucus, and overwhelming support from the senate Democrats.

As Palestine Legal and the Center for Constitutional Rights noted in a statement last week, the three anti-protest bills rely on widely-condemned tactics used to undermine democracy: creating McCarthyite blacklists, punishing dissent, attacking academic freedom, and cracking down on student organizing.

Two of the bills target colleges and universities. One would prohibit state funding for student organizations that support boycott, divestment, and sanctions (BDS) campaigns for Palestinian rights. The second bill would withhold state funding from academic associations, like the American Studies Association, that support BDS.

The third bill would codify – and expand – a widely-condemned (and widely-ridiculed) executive order signed last year by Governor Andrew Cuomo. The executive order created a state-sponsored blacklist of companies and institutions that support BDS, and prohibits the state from doing business with blacklisted entities. The new senate bill expands the blacklist to include individuals and non-profits. It prohibits New York from contracting with or investing in any person or entity on the blacklist.

All three bills are unconstitutional. The Supreme Court has long held that political boycotts are a protected form of speech, association, and assembly.[1] Indeed, this country has a rich history of boycotts used as a tactic to advance social justice, including boycotts against racial segregation in the U.S. and Apartheid in South Africa. Boycotts for Palestinian rights are no different.

State senators’ determinations about what viewpoints are acceptable cannot infringe on the First Amendment-protected right to freely express political views.[2] In fact, the Supreme Court has held that the government may not condition a benefit – such as a public contract, public investment, or state funding – on the requirement that one forgo a constitutional right.[3] To do so would effectively penalize disfavored political viewpoints. Yet this is precisely what the three bills passed by the New York State Senate would do. 

The New York bills are part of a national trend to enact anti-protest laws aimed at punishing Palestinian rights advocacy. For years, activism for Palestinian rights in the U.S. has been censored and suppressed – often at the behest of rightwing Israel advocacy groups – in an effort to shut down any conversation about Palestinian rights. But despite these efforts, support in the U.S. for Palestinian rights has grown, leading some Israel advocacy groups to increasingly turn to politicians in their efforts to shut down activism. The leader of one Israel advocacy group boasted, “[w]hile you were doing your campus antics, the grown-ups were in the state legislature passing laws that make your cause improbable.”

Backroom deals to limit our constitutional right to support BDS – in addition to the recent wave of anti-protest bills introduced in state legislatures across the country – should alarm all of us. In the Trump era especially, our state and local lawmakers should be ferociously defending, not limiting, our right to protest and dissent. If we don’t hold lawmakers accountable when they limit the rights of Palestinian rights activists, powerful interest groups intent on shutting down other forms of protest will take note and deploy similar tactics to crush other areas of dissent. 

All New Yorkers who value free speech and the right to dissent should contact their state senator to register their opposition to the passage of these bills, and contact their state assembly member to demand they vote against such anti-protest bills and all other efforts to limit the right to dissent.

Rahul Saksena is a Staff Attorney with Palestine Legal.

[1] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982).

[2] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.)

[3] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

Last modified 

March 17, 2017