WFS Panel Discussion 7/22/16

Part 1 Alan Levine

Part 2: Donna Nevel

Part 3: Questions and Answers

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

* 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.

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.”*

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

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

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."*

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

* 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)

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.

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

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.

Bearsville, New York

*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.