WFS Panel Discussion 7/22/16

Part 1 Alan Levine

Part 2: Donna Nevel

Part 3: Questions and Answers

This statement is in support of a Resolution pending before the Woodstock Town Board

Alan Sussman 

29 August 2016 

This statement is in support of a Resolution pending before the Woodstock Town Board which would, if enacted, express opposition to Governor Cuomo’s Executive Order #157

I. The Issue 

The Executive Order, signed in June, directs state agencies to divest public funds from entities which support economic boycotts, divestments and sanctions (“BDS”) against Israel. Advocates of BDS oppose Israel’s occupation and settlement of land it conquered in the 1967 war and consider it illegal under international law. (Some BDS campaigns are directed toward Israel as a whole, others only to Israeli products made in occupied lands.) The Order directs the Commissioner of the Office of General Services to create and publish a list of companies and entities which support BDS. Those on the list must supply evidence to prove they don’t promote BDS activity if they wish to be removed. 

My support of the Resolution before the Town Board has nothing to do with being in favor or against BDS; it is based entirely on my understanding of the importance of freedom of speech and opinion to our democratic form of government and its favored position in both the United States and New York Constitutions. Underlying my position is the non-contested legal standard that economic boycotts, divestment and advocacy of sanctions are protected forms of political speech.* 

The fact that Executive Order #157 (hereinafter: “EO 157”) has itself been characterized as a boycott - and thus equally protected by the constitution - makes matters a bit confusing, but I will try to explain why there is neither political parity nor legal justification for what EO 157 does. Perhaps more importantly, I will try to explain why I think it is necessary for the Town of Woodstock to oppose it. 

II. The Town’s Interest 

There is a natural reluctance for the Town to involve itself in matters beyond its jurisdiction. But issues raised in EO 157 are not beyond its jurisdiction. The Board is not being asked to take a position on the desirability of, say, honoring striking grape-pickers in California, nor even the desirability of protecting the rights of BDS supporters in New York. The issue before the Town Board has nothing to do with BDS. If the Governor had ordered the divestment of state funds from those who oppose the BDS campaign, rather than from those who support it, my position would be the same. 

Whenever a free speech controversy arises, the censoring authority (Congress, the Mayor’s office, etc.) always attempts to frame the issue as something else, such as a matter of crime, subversion, or threat to public morality. So, for instance, requirements to sign loyalty oaths in the 1950’s were characterized as a need to rid our schools of communist teachers and professors. Similarly, banning provocative art from public museums in the 1970’s was characterized as protecting the public from religious or sexual offense. But the essence of free speech never hinges on the content of the speech or the position being advocated. All speech is neutral, or rather must be seen as neutral from the government’s perspective, because once the state takes sides, it will favor what it likes and suppress what it does not. As Justice Jackson wrote in a case decided in the midst of World War II, “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 or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”*

* In NAACP v. Claiborne Hardware Co. 485 U.S. 886 (1982), the Supreme Court unanimously found that state action “against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights” could not be justified. 

III. Freedom of Speech:

A. The Free Exchange of Ideas There is another reason why free speech should be honored even when many of our instincts tend in the opposite direction. That is because we consider ourselves thinking beings, capable of making rational choices, and if certain ideas are kept from us our decisions will be less informed. Moreover, as a pragmatic matter, it is likely that with a full range of choices the best decisions will be made and the less desirable or less useful ones will wither because they have been openly exposed and rationally rejected. As Justice Oliver Wendell Holmes, Jr., famously dissented in a 1919 case involving anti-war advocates: "The ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market."* 

* West Virginia State board of Education v. Barnette, 319 U.S. 624 (1943)

I apologize for digressing this far into the field of law, but it is necessary to demonstrate why I believe the Town has a serious stake in the issue at hand. Woodstock is a political subdivision of the State of New York. It derives its entire political legitimacy under the Constitution of New York. And its businesses, churches** and individuals are protected by the Constitutions of New York and the United States. 

III. Freedom of Speech: B. Advocacy 

My chief concern about EO 157 is a clause located in the “Definitions” part (Sec. 1 B) which describes the activity in question as not only “engaging” in BDS activity but “pro- mote(ing) others to engage” in BDS activity as well. This is a breathtaking addition, as it means an entity will be subject to State sanction for merely urging others to consider what BDS advocates have to say.* If a boycott is a form of speech, advocacy of a boycott is pure speech, especially because its message is political and aimed at political change. Advocacy is other-directed, which of course all political speech is: why would one enter the arena with a message unless one wanted the message to be heard (and considered) by others?** 

To urge another to join a political party or a political cause, whether or not the person doing the urging is herself a member, is advocacy. To ask another to contribute money to a charitable organization, whether or not the asker is herself a contributor, is advocacy. 

* Abrams v. United States, 250 U.S. 616 (1919). This metaphorical embrace of the free market of ideas has become dominant in American debates about free speech. Justice William Brennan defended the right to mail “propaganda” against U.S. Post Office censorship by arguing: "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers." Lamont v. Postmaster General, 381 U.S. 301 (1965).

** In 2014, The Presbyterian Church (U.S.A.) passed a resolution at its general convention to divest funds from three corporations that supply Israel with equipment used to destroy Palestinian homes and extend Israeli settlements in the occupied territories. The Resolution made clear the Church’s affirmation of Israel’s right to exist, but the action will likely earn the Church’s place on New York State’s “list” of entities which support BDS. Other religious organizations which have joined the BDS movement, at least in part, include the Mennonite Central Committee, the Quakers, and the United Methodist Church. (New York Times, June 20, 2014) 

Thus EO 157 penalizes the legal advocacy of an activity which itself (boycott, divestment) is perfectly legal. The irony is that one could, or an entity could, advocate genocide. One could advocate slavery. One could advocate lynching. All these activities are illegal, but the advocacy of them is not. If one did advocate slavery, for example, he (or the entity) would not be at risk for loss of State investment. But if one advocates the boycott of Israeli products manufactured in occupied territories then one will violate the terms of EO 157, be placed on a blacklist and lose State investment.

* The vague quality of the definition, found in the Order itself, is a point of legal concern that I will not address, but vagueness usually favors the sovereign, which in this case is the list-maker.

** The State (itself) has freedom of speech. It is free to have a voice in forming public opinion. It is permitted - if not obligated - to make political decisions. It is free to announce, for all the reasons listed in the “Whereas” clauses of EO 157, that New York is “for” Israel and “against” BDS. If that were all the Order did there would have been no extraordinary public response, nor would this letter have been written. But the Order does more.

IV. Doing and Not Doing Business With Another State or Nation 

Not doing business with another state or nation, for political reasons, is a right that individuals, business and even states and nations have. This is not the same as a right to do business with a foreign nation, which does not exist.* A state may lawfully sanction a business for doing business with another state but it may not sanction it for not doing business at all. 

Pretend it is decades ago and some domestic corporations are doing business with South Africa when that country practiced apartheid. Pretend also that New York State determined, politically, that apartheid is an evil practice and the State would no longer do business with corporations that do business with South Africa.** The State, I submit, is permitted to boycott entities which are actively participating in or furthering what the state deems to be another state’s evil practices. But it is not parallel logic to say a state may similarly boycott private entities which do not do business with another state for political considerations.

* There is, in fact, a 2012 law that prohibits New York State from entering contracts with those who do business with Iran. This fits the “doing vs. not-doing” paradigm I am positing. There is no unlimited right, constitutional or otherwise, to do business with a foreign nation. But the State cannot penalize one for not doing business with a foreign nation. (It is not unreasonable to expect that some New York companies may decide they no longer want do business with Russia because it invaded and an- nexed Crimea. Or that an Irish-American businessperson does not want to do busi- ness with England. One may not want to do business with China, believing it engages in unfair trade or currency practices. There are Jewish businessmen who refuse to this day to do business with Germany. Can one imagine anyone of these being told that if they refrain from doing business with these nations - which they dislike for political reasons, and say so - they will be subject to loss of state investment?)

** Governor Mario Cuomo attempted to have legislation enacted in 1985 furthering this very goal. The Legislature, however refused to authorize it and the matter died.

 

V. The Lack of Criminal Sanction 

EO 157 does not criminalize those who engage in BDS activities. Thus, as its supporters correctly claim, one is still “free” to advocate or engage in BDS activities. But while the Order does not criminalize it does penalize. The difference is not merely semantic. 

Restrictions on free speech are not like restrictions of other, non-constitutionally protected endeavors. Restrictions on speech may be tailored to accommodate the free speech or privacy rights of others (time, place and manner restrictions) or to prohibit harassment or threats on the life of another. EO 157 does none of this. While it does not impose a jail sentence on those who engage in BDS activity, it nevertheless restricts the freedom of those who participate or simply advocate BDS goals. In fact, it imposes a penalty on them, unlike those who engage in other similarly legal activity - for example, those who wish to engage in or advocate a boycott of Chinese products. 

The penalty is not minor. Nor is it without consequence. The effect is financial, and purposely-inflicted financial harm imposed by the government is correctly classified as a penalty. A civil penalty is not the same as a criminal offense, of course, but it is still a penalty, and it is one not faced by other groups who advocate political change. But there is more. The additional and more serious effect is that people will be reluctant, and groups and corporations even more reluctant, to speak their mind for fear of incurring a state-imposed penalty. 

This is the real consequence of EO 157 and which will, in time, affect us all. It is impossible to doubt that intended effect of the Governor’s Order was the elimination or withdrawal of a specific topic from public discussion. What else could have 7 been its purpose?* As such, the thrust of EO 157 is in the wrong direction. The citizens of a healthy democracy should not be afraid of controversy. Surely the people of Woodstock understand the value of vigorous debate. 

We have an obligation, sustained in part by our fierce tradition of freedom and in greater part by our love of democracy and fairness, to object to this Order. The penalty authorized by EO 157 is not draconian, and while it will cause some pain, it will not likely crush the BDS movement. Yet this is not the point. The point is that beginnings must be resisted, and though our objection may be mostly symbolic, it is no less necessary. Even symbolic resistance is important. It will keep the wrong it from spreading. 

* The question of eliminating America’s involvement in the international slave trade was not permitted to be debated by Congress until 1808 because the Constitution, when written, contained a clause preventing its discussion for the next 20 years. This is now recognized to have been a poor idea. By tying up future debate we deny ourselves and our children the benefits of reasoned discussion and considered judgment. If a topic is excluded from debate, or if its adherents remain silent be- cause they fear state reprisal, it is being suppressed.

Bearsville, New York

 

 

Congratulations

Congratulations

 

Congratulations to the town of Woodstock and to the Woodstock Town Board for unanimously passing the Woodstock Free Speech Resolution. This Resolution is the first of its kind in New York State, and perhaps in the nation, to stand up to a direct attack on our First Amendment Right of Free Speech and its attendant Right to Boycott. Governor Cuomo’s Executive Order 157 of June 5 clearly tries to limit those First Amendment Rights by imposing economic retribution on those entities that support the Boycott, Divestment, and Sanctions (BDS) campaign against Israeli policies and its treatment of Palestinians. In addition, in a way reminiscent of the McCarthy era blacklist of suspected communists, this Executive Order creates a public list of all entities supporting BDS and only allows for those names to be removed from the list by those entities publicly renouncing BDS. 

 

Woodstock Free Speech introduced the Resolution to the Town Board on July 19 and then undertook an education campaign that consisted of three community events, appearances on local television and radio stations, online and paper petitions, tabling at the weekly Farmers’ Market, and entering into an extensive dialogue with the Town Board, which voted to pass the Resolution on September 19. In so doing, the Board stated that it makes no declaration in support of or in opposition to the BDS campaign and, in fact, acknowledges deep Board divisions on the matter.  

 

The Town Board, much to its credit, was open to exploring this issue and asked numerous probing questions, many of which were answered by a First Amendment Rights attorney. This was decided solely on the question of First Amendment Rights and the Board’s desire to protect its citizens against any and all abridgements of their civil liberties. 

 

So, congratulations to all of us who call Woodstock our home. Someday, Woodstock may be as well known for standing up for free speech as it is for the music festival that never happened here.

 

 

Nic Abramson

Our Free Speech

Our Free Speech If you’re someone like I, who, not only has opinions, but also wants to express them, then you’ll understand why the First Amendment is so important. When my government, or for that matter, when anyone, is committing horrendous acts, or simply acts of which I disapprove, I should have the inalienable right, and, in my mind, the obligation to loudly and clearly express my disapproval. My government neither has the right to censure me nor to limit my free speech by withdrawing their services or their financial support.  And, this right does not apply only to me.   So, although I abhor Donald Trump and find his opinions and attitudes reprehensible, I fully support his right to say them and his supporters’ right to embrace them. And, I support the rights of David Duke, whom I condemn, and Joseph McCarthy, whom I condemned, as well as the free speech rights of everyone. Free speech is non-discriminatory. Free speech is not only an essential part of democracy, but the very bedrock upon which our other freedoms rest. So, I hope you’ll support my First Amendment rights, as well as your own, by urging our town board to pass the Woodstock Free Speech Resolution (http://woodstockfreespeech.org) that affirms our rights to free speech. Nic Abramson

On Civil Responsibility

During this circus of a presidential campaign, one of the preeminent thoughts that pops up in my mind has to do with civil rights and responsibilities. I'm sorry to say that, while I think most people get the 'rights' part of it – those inalienable human rights that we are all equally endowed with, too large a contingency of US civil society is somewhat lax in the responsibilities part of the deal; hence, the two ring circus that is our US body politic. If civil society were more engaged in, say, local politics – spending some time communing and communicating with the community to ensure equality and justice for all on the local level – there might be a sort of trickle up (think globally, act locally) effect and might possibly change the dynamic on the national level – which could have a profound influence on the prospects for peace and the enforcement of human rights universally.

 

To this end I must reiterate a topic that has come to light within this community regarding the NY State Governor's executive order in which, by fiat – as legislation can messy, according to the executor, NYS citizens no longer have the right to express, through the non violent act of boycott – a protected First Amendment Right – one's opinion regarding the call for equality and justice by Palestinian civil Society (bdsmovement.net). So, while the issue of Palestine and Israel may be a highly contentious issue for some, the issue of our constitutionally protected inalienable rights should be a concern for all of us. When your rights are usurped from under your nose – while out of sight an therefore out of mind – from the highest executive authority in the state that you somehow elected, it becomes your responsibility (as noted in the Declaration of Independence) to ensure the restoration of those somehow-no-longer rights back to their status of inalienability.

  

To make it easy for everyone in the Woodstock community, and perhaps educational and entertaining in some fashion as well, a group of locals are confronting the Executive Order through their WoodstockFreeSpeech.org campaign. In addition to putting forth a resolution to the Woodstock Town Board to uphold our 1st Amendment Rights, we are hosting a series of community engagements centered around dialog and presented via a panel discussion, a film, and a couple of World Cafe style community discussions. The first of these events will take place on Friday in Woodstock at the Town Hall from 7 – 9 PM. A panel discussion on Governor Cuomo's executive order will be presented by constitutional lawyer Alan Levine and Jewish Voice for Peace National Board Member Donna Nevel followed by a question response period. I hope to see you there.

 

Check the WoodstockFreeSpeech.org website for details 

 

Adam Roufberg, Willow NY

 

Identities

Towns, like individuals, live in the sea of history and have identities that are defined over time. Towns, like individuals, are complex entities that function on many levels: physical, emotional, political, environmental, moral, spiritual, intellectual, to name just a few.

 

In fact, towns and individuals are not separate entities; rather they interact, intersect, and co-create as people come to identify with where they live, shape it, and are, in turn, shaped by their towns. Why do we feel we belong in some places and not in others? What are the attributes of towns and of ourselves that make us proud when we identify as inhabitants of a particular place?

 

When our family moved to Woodstock in the 1980s, we moved to a town defined by the 1969 Woodstock Concert and its symbol of a dove perched on a guitar. We were drawn to Woodstock from New York City by sentiments of peace and love, acceptance of diversity, and the anti-Vietnam War movement. Also, historically, Woodstock had been known as the Colony of the Arts. We were happy to say that those identities suited us well, and we were proud to say we were from Woodstock.

 

Today, we feel that those essential characteristics are not so apt, that they are mostly relics from the past and that we, as Woodstockers, need to invest ourselves in new or different identities of which we can be proud. One of those possible new identities is that of an engaged and well-informed citizenry, who are actively engaged in protecting their basic freedoms, as guaranteed by our Constitution.

 

When attempts are made to limit those freedoms, as Governor Cuomo did when he issued his June 5 Executive Order #157, it is up to us and our town to speak up and let our voices be heard. Let’s make Woodstock into a town where free speech is sacrosanct. Let’s make Woodstock into a town known for its love of free expression and its willingness to stand up against any and all government encroachments of our constitutional rights. This is an identity that we can be proud of and one that speaks of the very best in us.

Identities can’t be assumed as easily as putting on a new hat or coat; they aren’t mere masks, but are outward expressions of our beliefs. They must be earned over time by constant nourishment and reaffirmation. You can be part of fueling this new identity by getting involved with the Woodstock Free Speech movement. Please attend a meeting of the Woodstock Town Board (76 Comeau Drive), on Tuesday, July 19, when Jay Wenk will introduce a Free Speech Resolution. You can read the resolution and sign our petition at http://www.woodstockfreespeech.org/.

 

NicAbramson                                                                                                                                                                                                                      Helaine Meisler                                                                                                                                                                      Shady,NY 

The Narrow Lens of Empire

Historically, empires have viewed the rest of the world through a very narrow lens. Other lands are seen as opportunities to rob or enslave. In late empire, the treatment of foreign subjects becomes the norm for abuses of its own citizenry.

With 800 US bases overseas, America can be viewed as the most powerful empire the world has ever seen. Its endless wars abroad has brought home a particularly vicious form of racism along with all the high tech weaponry to create havoc in a divided society.

America's colony Israel is a perfect example. It's intense racism directed at its Palestinian minority gets defended by our Congress, setting an example for this country. Racism is OK if directed at those of a particular religious group or skin color; that's the way the empire works.

So it is no surprise that Governor Cuomo's recent executive order forbids groups or businesses to boycott Israeli products. Boycotts, part of many human rights campaigns, have always been viewed as threats by the elites. Outlawing the right to boycott is really the first step to criminalizing any speech that the empire deems offensive. What would happen if the majority of US citizens really demanded human rights in the rest of the world? Who could the empire assassinate with drones, or torture in hidden prisons? What countries could the empire invade and occupy, killing millions in the process? And how could it possibly protect its colony, Israel, with its sixty five year history of ethnic cleansing and genocide?

The right of citizens to boycott is protected by our First Amendment and by various Supreme Court decisions on political speech. But that is clearly not enough to stop our governor from trampling on our rights. One town, Woodstock, is fighting back by considering a resolution that limits Governor Cuomo's executive order.

You can do your part by signing the Town of Woodstock's resolution at www.woodstockfreespeech.org, and then by attending some of the events being planned. The resolution will be introduced at the July 19 town board meeting, and a panel discussion will be presented the following Friday, July 22, starting at 7 PM in the Woodstock Town Hall.

Standing up for freedom of expression has never been easy, and each generation has had to demand their right to be heard. Now, it's our turn to ensure that the state does not destroy our First Amendment rights.

Fred Nagel
8 Clay Ct.
Rhinebeck, NY 12572
845 876-7906

Why Free Speech Now?

Normally I think about free speech about as often as I think about the air I breathe. It's in the background; I take it for granted. And it's only then, when I'm in the smog of Los Angeles or hiking at an altitude where the air is thinner do I become aware of the lack of oxygen. Sometimes, it is only when you are deprived of something that you remember how vital that thing is, that you once took for granted, to your well being...and sometimes to your very existence. And so it is with free speech.
My political sympathies generally align with the powerless, the less fortunate and oppressed members of human society, whose voices are less heard and less often represented. I am a supporter of justice for the Palestinian People, and I participate in their call for a Boycott, Divestment, and Sanctions (BDS) Campaign against Israel. So, I was personally affected when Governor Cuomo issued an executive order that put limitations on the constitutionally protected right to boycott Israel. All of a sudden, I was faced with the fact that there wasn't as much oxygen in the atmosphere, that my right to non-violently express my opinions was being limited by my government, whose own Bill of Rights protects my right to freely express those opinions.
And then, as I thought about this, and realized that it's not just BDS that's at stake, but my freedom to exercise my First Amendment rights, did I remember the 1946 statement of Martin Niemoller, a German Lutheran pastor:
          First they came for the Socialists, and I did not speak out -
          Because I was not a Socialist
          Then they came for the Trade Unionists, and I did not speak out -
          Because I was not a Trade Unionists
          Then they came for the Jews, and I did not speak out -
          Because I was not a Jew
          Then they came for me - and there was no one left to speak for me.
In this dangerous time, when our rights are under attack, when minorities are imperiled, when we live in constant fear and that fear is unnecessarily flamed by our "leaders," now is the time, this present moment, for citizens to speak up – to defend our rights and the rights of others. The Woodstock Free Speech (WFS) Campaign is a movement that encourages each of us to stand up against unconstitutional attacks on our First Amendment Right of Free Speech.
Please sign a petition at http://woodstockfreespeech.org/ and join in asking the Woodstock Town Board to adopt a Resolution that affirms our First Amendment Rights.


Nic Abramson        

 

 

 

Woodstock Free Speech Campaign

The Woodstock Free Speech Campaign that town board member Jay Wenk wrote about in last week's Woodstock Times is just being launched. Its goal is to have the Woodstock Town Board pass a resolution, which states that the right to boycott, as a component of constitutionally-protected free speech, is important enough to the town of Woodstock and its inhabitants that we are willing to take a stand against Governor Cuomo's unilateral executive order, which bans boycotts against Israel.


Why should this campaign be important enough for Woodstockers and others to support? Why is it important for citizens to stop any and all encroachments on our First Amendment rights?


Free speech and the non-violent expression of our views, whether popular or not, are the bedrock of our democracy. When the First Amendment rights of any one of us are limited or denied, can the denial of others be far behind? It's the canary in the mine. It's our early warning system. And, if we ignore these first encroachments, then we are on a slippery slope indeed. There are a number of signs that mark the beginning of fascism, and this is right at the top of the list. When a government can pick and choose what's okay today and what's not okay tomorrow, then we are in a perilous place.


The role that civil society (you and I) plays in the democratic process should not be limited to voting in elections. Democracy works best when there is an engaged public, one that is well informed, willing to speak out, and organized to protect its rights. Rights come with attendant responsibilities, and this campaign is a way for Woodstockers and others to shoulder that responsibility. We owe it to future generations.


In the next few months, there will be town educational and organizing events. Please join this non-partisan campaign to protect our First Amendment rights. Make this a Woodstock campaign by signing the petition atwww.woodstockfreespeech.org and sharing it with your friends and neighbors.

 

Nic Abramson, Shady NY