Much of the impetus for enshrining the 1st Amendment within our Constitution was to protect dissidents: people who opposed popular or powerful political opinion. Alexander Hamilton, James Madison, and John Jay, our founders and authors of the Federalist Papers, were dissenters.
Nevertheless, a bill that passed the New York Senate, would effectively undercut free speech by disqualifying companies from doing business with New York for boycotting Israel on account of its numerous human rights violations. Entities that engage in their 1st Amendment right to support the Boycott, Divestment, and Sanctions (BDS) movement for Palestinian freedom and equality will be penalized.
The bill requires divestment from and prohibits business transactions, contracts, and investment with companies, contractors, subcontractors, NGOs and/or individuals that boycott an allied nation or companies of an allied nation -- Israel.
First, the bill classifies companies that boycott Israel as "non-responsive" bidders for "purchasing services and commodities." New York financing law requires that services and commodities contracts only go to responsive bidders. Consequently, in order for companies to be "responsive bidders" and keep their contracts, they must refrain from supporting BDS.
Second, the bill prohibits highway and building contractors with the State from using any subcontractors that boycott Israel, and requires these contractors to certify with the State that they do not boycott Israel.
Third, the bill amends the Retirement and Social Security Law by requiring the State's common retirement fund to divest of any pension or annuity from any company boycotting Israel and prohibits investment in any bank or financial institution that boycotts Israel.
Another New York bill also intends to silence speech that supports BDS.
What's next, shutting down New York churches divesting their holdings from companies complicit in Israeli human rights violations?
These bills, if signed into law, would be illegal. They place unconstitutional prohibitions on 1st Amendment protected activity and impose an outright ban on freedom of speech backed by the financial harm ensuing from lost business opportunities. If entities want to avoid these penalties, they must refrain from speech supporting BDS. The effect would be to silence entities whose speech the Government disagrees with, smothering the viewpoints it opposes.
The U.S. Supreme Court in Citizens United v. Federal Election Commission affirmed that private corporations are "persons" with 1st Amendment protected rights. Laws that burden political speech are subject to strict scrutiny. This level of scrutiny requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. These state bills do not satisfy this standard.
The BDS movement advances freedom. It is not motivated by national origin, race, or religion. Criticism of the Israeli government's policies and corporation practices that violate Palestinian rights deserves praise rather than criticism from state legislators.
The BDS movement is a form of protest similar to the nonviolent struggle for civil rights in this country. At its core is political speech afforded 1st Amendment protection. States have no right to prohibit peaceful political activity and political speech. In NAACP v. Claiborne Hardware the Supreme Court held that protests, rallies, petitions, and sit-ins were protected speech. BDS should be every bit as protected speech and protest as the Montgomery bus boycott.
The 1st Amendment stands against attempts to disfavor certain subjects or viewpoints and protects a "person's" right to unpopular speech. There is no right to be protected from controversial or offensive speech, though it's disturbing that some New York politicians regard as offensive speech upholding equal rights for Palestinians. Supreme Court precedent has established that even the most controversial speech, like students wearing black armbands in protest to the Vietnam War in Tinker vs. Des Moines, is protected speech.
Surely, speech calling for equal rights ought to be readily protected by New Yorkers and their political leaders. There is no Israel exception.
This piece originally was published in the Albany Times-Union.
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