Using government power to chill speech is nothing to applaud.
The Boycott, Divestment, and Sanctions movement will be familiar to anyone politically active on a college campus. Spearheaded by anti-Zionist activists, the movement aims to boycott, divest from, and sanction Israeli goods and businesses as a retaliation for Israel’s occupation of the West Bank. The movement’s national prominence was escalated significantly on Sunday, when Governor Andrew Cuomo announced that the state of New York would no longer do business with firms that allied themselves with the BDS movement. Cuomo advertised the announcement, and the executive order enacting it, as a show of solidarity with Israel: “If you boycott Israel, New York will boycott you. . . . If you sanction Israel, New York will sanction you, period.”
But Cuomo’s executive order in fact treads on thorny ground. Conservatives have often criticized left-wingers for boycotting Chick-fil-A in the wake of the company’s donations to anti-same-sex marriage groups and comments made by its CEO. In some places, politicians tried to throw state power behind these boycotts — in Boston and Chicago, bans on the fast-food chain were proposed, and the mayor of San Francisco, where the chain had no outposts, “strongly recommend[ed] they not try to come any closer,” saying that the chain was opposed to San Francisco’s “values.” Not to mention, of course, the many efforts at universities across the country to kick Chick-fil-A off their campuses. Those efforts, conservatives argued, represented an affront to free expression. And maybe more. In a post at the Volokh Conspiracy, UCLA law professor Eugene Volokh argued that any government attempt to deny Chick-fil-A a permit based on the views of its owner would be a “blatant First Amendment violation.”
The same logic, it would seem, applies to the BDS situation: By refusing to do business with firms affiliated with BDS, Cuomo is abridging the same freedom of expression that was abridged by the Chick-fil-A boycotts. Whether Cuomo’s actions constitute an actual First Amendment violation — as opposed to the violation of a broader principle of social norms — is debatable, given that the state government is under no obligation to contract with anyone in the first place. Either way, the move certainly threatens freedom of conscience. That should give us pause, regardless of whether or not one agrees with Cuomo on the underlying political question. Going forward, businesses will be denied government contracts solely on the basis of their affiliations with groups who advocate for a position Cuomo doesn’t like. Moreover, the burden of proof will be on businesses placed on a provisional list to prove that they aren’t affiliated with BDS organizations, not on the state to prove that they are. (And it’s not often that both Reason and Salon, the former of which described the order as “brazenly autocratic,” are unhappy with the same thing.) Is that a precedent we wish to set?
Cuomo is a governor with what might be described as a particularly imperial streak.
One might have other qualms about Cuomo’s executive order. Cuomo is a governor with what might be described as a particularly imperial streak, one who appears to tolerate only one ideological line. He did, after all, remark that the executive order was a good way to circumvent a “tedious” legislative process. This is the man who, in 2014, said that “extreme conservatives who are right-to-life, pro-assault-weapon, anti-gay” have “no place in the state of New York, because that’s not who New Yorkers are.” Earlier this year, he banned non-essential state travel to North Carolina and Mississippi over laws that allegedly discriminated against LGBT people. Cuomo’s executive order fits a trend, one with a clear and persistent message — get in line, or we will use the full force of state government to twist your arm into doing so. It is a mode of operation fully familiar to Democratic governors in the Northeast — Connecticut’s Dannel Malloy also rushed to ban travel to states whose LGBT policies he disagrees with. (Malloy has also, perhaps not incidentally, been criticized by Democrats and Republicans alike for often acting in a kingly manner.)
Those measures were popular among liberals, but the anti-BDS executive order is likely not to be — the anti-Israel lobby often overlaps with the pro-LGBT one. The executive order, then, might serve as a reminder that, once certain powers and the tools to implement them are granted to the people in charge, those tools can be used in whichever way they want. The same person might ban state travel to supposedly anti-LGBT states and might ban the state of New York from doing business with companies that are ideologically aligned with the BDS movement. If there were ever a case for restraint, for restricting the powers granted to government lest they be used for the wrong purposes, this is it.