The List: Cuomo’s anti-BDS executive order is a first amendment nightmare

On June 5 New York Governor Andrew Cuomo signed into law an executive order aimed at the Boycott, Divestment, and Sanctions (BDS) Movement. BDS is a non-violent economic and political protest against the Israeli occupation of the Palestinian territories.

In Cuomo’s order, which Salon reporter Ben Norton called “McCarthyite,” there is a provision that requires the state to create a list of companies that participate in the BDS movement. The list aims to publicly shame and financially harm those who exercise their First Amendment right of political protest.

And though Cuomo’s order will not stand up to a challenge in court, the list itself will cause extreme harm and damage — and that’s the plan.

Within the next 180 days, the Commissioner of General Services of the state of New York will deliver the initial list of BDS-participating companies to the governor. The list will be placed online for the public’s viewing. Companies are allowed to appeal their placement for 90 days in advance of their placement.

As Glenn Greenwald and Andrew Fishman described it in The Intercept:

Cuomo’s Executive Order requires that one of his Commissioners compile “a list of institutions and companies” which – “either directly or through a parent or subsidiary” – support a boycott. That government list is then posted publicly, and the burden falls on them to prove to the state that they do not, in fact, support such a boycott.

Note — the language Greenwald and Fishman cite in the accompanying image to this paragraph appears to indicate companies have time to appeal their placement prior to public posting, not after

Once a company is on the list, they can appeal for removal from the list. The list will be updated every 180 days.

Draconian stuff.

Even if the legislation doesn’t survive the inevitable legal challenges on its merits, the creation of such a list will have irreversible consequences.

One of the lingering after-effects of the Hollywood blacklist in the McCarthy era of the 1950s was the difficulty of the wrongly accused to find work, decades after the list had been closed. Despite the efforts of the Hollywood Ten, the breaking of the list did not result in the immediate reinstatement to work of those on the list.

Some would go without work for years due to their association with the blacklist and, by proxy, Communism. Even after the country by and large had rejected the blacklist and McCarthyite scaremongering, the ostracization of those associated with the list remained in place.

It’s for this reason that Cuomo’s legislation is so dangerous.

First Amendment rights of association and political protest are designed specifically to combat government interference. Cuomo’s anti- BDS law is an obvious and blatant violation of those rights. It will be struck down in court.

But if it is not struck down in time, if the courts do not manage to issue a stay on its implementation, or if the NY state bureaucracy can tie up the legal system while putting the order into effect, the list will exist. And once it exists, the damage will have been done.

Even when the law is struck down, the stigma of being associated with this draconian law will linger. Just as those who were on the Hollywood blacklist in the 1950s found it hard to find work for years after the list was broken, so too will businesses that are tied to BDS in NY state find it difficult to survive in the American economy.

Which is exactly the point. Cuomo wants the fear of that stigma to do the work of the law, no matter the outcome in the courts.

This article first appeared on Eoin Higgins’s website.