WFS Panel Discussion 7/22/16

Part 1 Alan Levine

Part 2: Donna Nevel

Part 3: Questions and Answers

Rescind EO157: Bill of Rights Defense Committee

View Original Letter >>

 

Dear Governor Andrew Cuomo,

The Bill of Rights Defense Committee/Defending Dissent Foundation (BORDC/DDF) is a

national organization that protects the right of political expression to strengthen participatory

democracy, and works to fulfill the promise of the Bill of Rights for everyone. We have over

3,000 supporters in New York, who share our deep commitment and passion for the First

Amendment’s guarantee of the right to dissent.

On Sunday June 5, 2016 you issued Executive Order No. 157, which violates the First and

Fourteenth Amendments of the United States Constitution. We call on you to rescind the

executive order immediately.

Executive Order No. 157 targets supporters of the Boycotts, Divestment, and Sanctions

movement, a movement which uses nonviolent, First Amendment protected speech to try to

change Israel’s human rights policies towards the Palestinians. As a domestic civil liberties

organization, we do not take position on international issues or the desirability of the aims of the

BDS movement. As an organization dedicated to protecting political expression though, we do

oppose any efforts by the state to impede the free expression of ideas.

Boycotts for political, social, and economic change are a protected form of political speech

under the First Amendment. Executive Order No. 157 explicitly references the 2005 Palestinian

Civil Society call for Boycotts, Divestment, and Sanctions. This statement called for boycotts

against Israel until three highly specific policy demands were met. Regardless of what you

personally think of these demands, there is no question that they constitute a form of political,

social, or economic change. As such, BDS is protected speech political speech that the

government cannot take efforts to repress.

While there may not be a right per se to be invested in by the state of New York, the state

cannot take actions to penalize someone for their political speech. Divesting from someone,

because they have engaged in political speech is a penalty. When California conditioned certain

tax benefits on the political speech of the recipients, California argued that tax benefits were

privileges, not rights. The Supreme Court responded, that to deny public benefits to those “who

engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent

1 See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

1

effect is the same as if the State were to fine them for this speech” Divestment based on

political views disfavored by the state of New York has a similar deterrent effect, in fact such

deterrence seems to be the primary purpose of you Executive Order.

This doctrine, known as the unconstitutional conditions doctrines, has continuously been upheld

and expanded by the Supreme Court over the years and applies widely to any public benefit.

Boycotts are particularly popular tools of nonviolent change and have a rich history in the United

States. The Boston Tea Party, the abolitionist movement, the civil rights movement, the

anti­South African apartheid movement, and so many others have all employed the boycott. Of

course, we need not tell you about the importance of boycotts to social movements. Recently,

you committed the state of New York to boycotting North Carolina over its anti­LGBT law.

Clearly, you understand the importance of boycotts as expressing political opposition and

enacting social change.

Executive Order No. 157 states the state of New York does not “support boycott related tactics

that are used to threaten the sovereignty and security of allies and trade partners of the United

States.” Yet, it is unclear then how boycotting North Carolina, which like the BDS movement ,is

premised on specific policy demands, does not threaten the sovereignty and security of North

Carolina if BDS threatens the “the sovereignty and security” of US allies and trade partners.

The truth is that the only difference between the North Carolina boycott, which the state of New

York is actively engaged in, and the boycotts your Executive Order penalizes,is that one has

aims that you favor, whereas the other has aims that you disfavor. Shortly after signing

Executive Order No. 157, you became co­chair of the American Jewish Congress’s “Governors

Against BDS Initiative.” While you are free to be personally opposed to BDS, or any other

political movement, you cannot attempt to enact your viewpoint by violating the First

Amendment rights of those with the opposing viewpoint. One of the bedrock principles of First

Amendment jurisprudence is that the state cannot discriminate on the basis of viewpoint.

Executive Order No. 157 singles out individuals, because of their views on Palestinian human

rights. Executive Order No. 157 discriminates on the basis of viewpoint and is unconstitutional.

You have tweeted that the state of New York is “boycotting” those who boycott Israel. While,

BORDC/DDF concedes that states are within their rights to engage in boycotts, such as those

against Arizona, North Carolina, Sudan, Iran, and Apartheid South Africa you cannot “boycott

the boycotters.” The Constitution puts a limit on what the state can and cannot do. The state

cannot “boycott” people because of their political views, any more than it could decide to

“boycott” people because of their race, sex, national origin, etc. The Constitution prohibits these

acts by the state. Human rights boycotts that do not target speech are not prohibited by the

2 See Speiser v. Randall, 357 U.S. 513 (1958).

3 See Perry v. Sindermann, 408 U.S. 593 (1972); O’Hare Truck Service v. City of Northlake, 518 U.S. 712

(1996); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).

Constitution. For example, although the state of New York boycotts the state of North Carolina

due to its discriminatory (and unconstitutional) anti­LGBT law, it does not deny public benefits to

individual New Yorkers who personally support such laws or disagree with the state’s decision

to boycott North Carolina.

Executive Order No. 157 not only violates the First Amendment, it also violates the Fourteenth

Amendment’s Equal Protection clause. Whenever the state imposes classifications and

differentiates in treatment based on those classification the Equal Protection Clause comes into

play. Generally, the burden of proving such a classification violates the Equal Protection Clause

falls on the person(s) claiming discrimination. The state’s classification is Constitutional so long

as it is rationally related to legitimate government interest, i.e. passes rational basis review.

However, when the classification involves a suspect classification (such as, race or national

origin) or a fundamental liberty, than the burden to prove it is constitutional falls on the state. In

order to prove its action are constitutional the state must show that is has a compelling interest

and the action must be narrowly tailored, i.e. it must pass “strict scrutiny.”

Executive Order No. 157 creates a classification­­those who engage in certain kinds of speech

about Palestinian human rights and those who don’t­­and distributes a public

benefit­­investment­­based on that classification. Since boycotts are core political speech, this

classification involves a fundamental liberty. If challenged, the burden would fall on the state of

New York to prove that is passes strict scrutiny.

A law based on animus fails to be rationally related to a legitimate government interest. A

federal district court in Idaho struck down a law criminalizing certain speech in relationship to

the agricultural industry as violating the Fourteenth Amendment’s Equal Protection Clause, as it

was “motivated in substantial part by animus” towards those with unpopular political views.

Executive Order No. 157 is substantially motivated in part by animus towards those who oppose

Israeli policies or advocate for Palestinian human rights. This means that Executive Order No.

157 could not even withstand the much lower threshold of rational basis review and by default

could not pass the much more exacting standard of strict scrutiny.

BORDC/DDF traces its roots back to the National Committee to Abolish the House Unamerican

Activities Committee (HUAC). As such, we are deeply disturbed by provisions in Executive

Order No. 157 to create a blacklist. We are only too aware of what happens when any body of

the government is authorized to investigate the political views of ordinary individuals and to

assemble lists of those who have dared to utter political heresies. We are also aware that the

victims of the HUAC era include not only those who were called to testify before the committee

4 See Massachusetts Bd. of Retirement v. Murgia 427 U.S. 307 (1976).

5 See Animal Legal Defense Fund, et al. v. Otter, Case No. 1:14­cv­00104­BLW

Available online at http://aldf.org/wp­content/uploads/2015/08/8­3­2015­ALDF­decision­ag­gag.pdf

or found themselves blacklisted. Amongst HUAC’s victims are those who dared not speak their

conscience for fear of government reprisal.

Throughout our 56 year history, we have repeatedly had reconfirmed what we learned during

the HUAC area. That is whenever the state takes measures to repress a social movement, the

effects of that repression are felt more widely than by only the immediate targets of the act in

question. Executive Order No. 157 may affect only an extremely narrow group, companies that

support BDS and New York is currently invested in, or may invest in. Yet, its chilling effect will

be felt by all those who wish to engage in open discussion about the Middle East. The BDS

movement has in recent years gained significant traction, and churches, professional

associations, labor unions and student governments have debated whether to support the BDS

movement. While such institutions would not be penalized under Executive Order No. 157, it is

difficult to imagine that once the state begins denying some public benefits because of

disfavored speech about Israel, other New Yorkers might think twice before speaking in favor of

Palestinian rights.

Executive Order No. 157 deters people from exercising their right to political expression about a

topic of great importance, the Middle East. As such, it is corrosive to democracy. It is also

unconstitutional. By suppressing core political speech, imposing an unconstitutional condition on

the receipt of a public benefit, and discriminating based on viewpoint it violates the First

Amendment. As it is substantially motivated by animus towards a viewpoint you disfavor, it

violates the Fourteenth Amendment’s Equal Protection Clause.

As an organization that values democracy, political expression, and the Bill of Rights we like to

believe that everyone shares our values. As such, we hope that you will demonstrate your

commitment to the Bill of Rights by rescinding Executive Order No. 157. We hope that in doing

so you will also issue a strong statement about the importance of political expression in a

democratic society.

Sincerely,

Sue Udry, Executive Director

Chip Gibbons, Legal Fellow