Thirteen institutions and companies are now banned from doing business with the state of New York because of their alleged support for a campaign that seeks to end the Israeli occupation of Palestine.
The blacklist, which was released in early December, comes six months after Governor Andrew Cuomo signed an executive order mandating the state to divest from any business or entities that participate in the Boycott, Divestment and Sanctions (BDS) campaign against Israel. Cuomo’s order is the first in the United States to address BDS, although similar efforts have been passed in other states through the legislature.
“This order sends the message that this state will do everything in its power to end this hateful, intolerant campaign,” Cuomo said in June, when he signed the order.
The New York Post reported that none of the listed companies are American. Nor are they believed to have ongoing financial relationships with the state of New York, according to the Office of General Services, which published the list.
The Boycott, Divestment and Sanctions campaign, which was launched by a range of Palestinian civil society actors in 2005, calls for global actors to use non-violent pressure — including the economic, political and cultural isolation of Israel — to bring about political change. Their demands include an end to the occupation and equal rights for Palestinian citizens of Israel.
BDS opponents have long alleged that the boycott campaign is anti-Semitic, including the Simon Wiesenthal Center and the Anti-Defamation League. And Angela Merkel’s political party, the Christian Democratic Union, recently passed a resolution condemning BDS for its allegedly anti-Semitic roots.
But a wide range of legal advocacy organizations, including the American Civil Liberties Union and the Center for Constitutional Rights, have denounced Cuomo’s executive order as a move to punish political speech.
Robert Corn-Revere, a Washington DC-based lawyer who specializes in First Amendment issues, told the Voice that that Cuomo’s BDS blacklist certainly raises constitutional concerns.
“You can either agree or disagree on the policy position, but to say that an individual or a company can’t express a disfavored view about the policies of another country is the essence of political speech,” Corn-Revere said. “You can try and call it discrimination all you want, but that doesn’t change that it’s protected political advocacy.”
Radhika Sainath, an attorney for Palestine Legal, an organization that engages in advocacy and legal support for Palestine activists, told the Voice, “The notion that this is anything but a boycott by principled human rights activists to advocate for change in Palestine is just a PR tactic by pro-Israel advocacy groups.”
Sainath added, “Governor Cuomo’s father, Governor Mario Cuomo, endorsed the boycott of Apartheid South Africa. No one said that this was a discriminatory boycott.”
After obtaining relevant emails through a Freedom of Information request, the news website AlterNet reported that Cuomo published the executive order after a lobbying campaign from pro-Israel groups, including the American Jewish Committee (AJC). “The emails show AJC lobbyists pressuring Cuomo’s office into signing on to a national anti-BDS initiative and even offering the governor a platform to defend himself against a Jewish critic of the executive order,” AlterNet reported.
In recent years, BDS has gathered steam. A number of major companies have pulled investments out of Israel after high-profile campaigns, including the French infrastructure company Veolia and the British security company G4S. A UN report found that foreign direct investment in Israel had dropped by 46 percent in 2014, in part due to the boycott efforts.
High-level Israeli officials have also started to take notice. In late May 2015, President Reuven Rivlin said that BDS should be considered “a strategic threat of the highest degree.” A few days later, Prime Minister Benjamin Netanyahu echoed his concerns. “We are in the midst of a great struggle being waged against the state of Israel, an international campaign to blacken its name,” Netanyahu said.
With BDS campaign successes have come efforts like Cuomo’s blacklist to crack down on boycott activism. The UK-based supermarket chain the Co-operative Group is one of the companies named on the blacklist. In 2012, after a sustained campaign by members, the Co-op announced it would no longer do business with companies that sourced produce from Israeli settlements built in occupied Palestine. Such settlements are widely considered to be illegal under international law.
Russ Brady is the Head of the Co-operative Group’s public relations & strategic communications. Asked to respond to news of the released blacklist, Brady told the Voice that the company’s decisions are guided by its Human Rights and Trade Policy. “This position is not a boycott of Israeli businesses, and we continue to have supply agreements with many Israeli suppliers that do not source from the settlements.”
The Copenhagen-based Danske Bank was also placed on New York’s BDS list. Danske Bank has pulled its investments from a number of Israeli companies involved in settlement construction, including Africa Israel, Bank Hapoalim and Danya Cebus. Danske is the largest bank in Denmark, with about 120 billion Danish krone ($17.2 billion) under management.
“We have no political motives or ambitions, and we do not boycott Israel or Israeli companies. Our ambition is to always act in a way that meets the demands and expectations of our clients,” Thomas Hyldahl Kjaergaard, Head of Responsible Investments in Danske Bank, told the Voice over email. “Thus, when we invest on our own and on behalf of clients, we strive to invest in companies that adhere to international principles for corporate responsibility such as the UN Global Compact regardless of where they have activities.”
The Co-operative Group, Danske Bank and a number of other companies on the New York list have also appeared on similar BDS blacklists like the one released by Illinois last spring.
The blacklist is rolling, so additions could be made in the future. Institutions or companies can be removed from the list “by submitting written evidence to the Commissioner [of the Office of General Services] that the institution or company no longer participates in boycott, divestment, or sanctions activity targeting Israel, either directly or through a parent or subsidiary,” according to the Order.
The Voice asked New York’s Office of General Services (OGS) to respond to the concerns by First Amendment scholars that the blacklist posed constitutional concerns.
“The State disagrees,” said OGS Director of Communications Heather Groll. “Further, there are several constitutional scholars, including Alan Dershowitz, who support the executive order,” she added.
While it appears that Cuomo’s blacklist is thus far largely ceremonial — since none of the companies listed will actually face economic consequences — activists and advocates are still concerned. Sainath, the Palestine Legal attorney, has already seen evidence of a chilling effect.
“A student group at a public university decided not to seek funding from their school to host a speaker with views sympathetic to BDS for fear that their university would lose state funding, or their group would be punished,” Sainath wrote in an email. She also cited another instance in which students trying to start a Students for Justice in Palestine chapter at their university were questioned by a student government official about their support for BDS, Cuomo’s executive order, and the impact approving the club might have on the college.
“The First Amendment protects the right to boycott, but Donald Trump has made it clear that he has little respect for the Constitution and that he’s ready to go after vulnerable communities,” said Sainath. “Given this new political reality, state and local officials should be showing leadership by vigorously defending the rights of people to dissent.”