Meanwhile, the author of a controversial definition of anti-Semitism that includes criticism of Israel is urging the US Congress not to enshrine the definition into law, saying it would be unconstitutional and harmful to free speech on campuses.
In June, New York Governor Andrew Cuomo signed an executive order calling for the state to cut financial ties with institutions that boycott Israel.
Speaking to state and local legislators and Israel lobby activists in Manhattan as he signed the order, Cuomo said, “If you boycott against Israel, New York will boycott you. If you divert revenues from Israel, New York will divert revenues from you. If you sanction Israel, New York will sanction you. Period.”
“Governor Cuomo’s blacklist of institutions that support nonviolent boycotts for justice for Palestinians is a stain on the state of New York,” Palestine Legal and the Center for Constitutional Rights stated last week.
Calling the list a revival of “a dark tactic of the McCarthy era,” the legal groups warn that it “may well achieve its unconstitutional aim” of intimidating advocacy groups from using “constitutionally-protected boycott measures to protest social injustice.”
Vague and opaque
As of 2 December, the state has listed 13 foreign companies that it has singled out for financial censure. The list will be updated every six months according to a process that has not been clarified.
The list includes European banks and grocery store chains that have refused to source goods or do business in Israeli settlements in the occupied West Bank, often in line with advice from European governments.
In January, in line with a growing international consensus, Human Rights Watch said that all companies should cease all business in or with Israeli settlements.
“Settlement businesses unavoidably contribute to Israeli policies that dispossess and harshly discriminate against Palestinians, while profiting from Israel’s theft of Palestinian land and other resources,” the New York-based human rights group stated.
A spokesperson for New York’s Office of General Services (OGS), the state agency in charge of compiling the blacklist, told The Electronic Intifada on Wednesday that the office “is not aware of” any current or prior contracts between the state and the listed companies.
It could be a deliberate public relations strategy to not include US-based companies on the state’s initial list in an attempt to avoid lawsuits, Radhika Sainath of Palestine Legal told The Electronic Intifada.
“Or is it because this blacklist is an attempt to scare people and to create a chilling effect? You could argue, then, that it is doing its job,” Sainath added.
So far, the process and procedure for choosing the companies to blacklist has been vague and opaque, in addition to the list itself being “blatantly unconstitutional,” Sainath said.
She said that the group is “looking into a potential legal challenge” to the blacklist.
“A lot of fear”
The Electronic Intifada asked the OGS spokesperson how the agency searches for, identifies and lists companies that support the boycott campaign, in addition to whether the state is prepared to defend the executive order in court.
OGS told The Electronic Intifada that “the state stands by the executive order” and referred to a 2012 list the governor compiled against companies invested in the Iranian energy sector.
When pressed for details about the procedures for compiling and maintaining the list, the OGS spokesperson replied that “several constitutional scholars, including Alan Dershowitz … support the executive order.”
Dershowitz, a former Harvard law professor and staunch Israel advocate, has long smeared Palestinians and the BDS campaign.
He recently defended Steve Bannon, President-elect Donald Trump’s chief strategist who was previously the executive chairman of Breitbart News, a platform for the white supremacist and anti-Semitic “alt-right” movement.
For activists who are new to the Palestine solidarity movement and are interested in knowing more about the global BDS campaign, Sainath said that Cuomo’s actions have created “a lot of fear” of state surveillance, especially in the Arab and Muslim communities.
Activists are afraid that if they are associated with the BDS movement, or host an event with a speaker who supports BDS, they could be targeted by the state, Sainath explained.
A New York-based grassroots activism group that supports BDS told her that through tracking software they use, they found that state government departments were clicking on their website.
“It can be really frightening to see that, in light of everything else that is going on,” Sainath said.
But Palestine Legal has also emphasized that despite Cuomo’s executive order – and legislation targeting the BDS movement in other states – advocacy of boycott, divestment and sanctions remains a constitutional right protected by the First Amendment.
Last week, the US Senate unanimously passed a bill that seeks to conflate speech in support of Palestinian rights with anti-Semitism.
The bill uses a discarded and discredited working definition of anti-Semitism published, but never adopted, by a European Union agency.
In a letter to the House Judiciary Committee this week, Stern urges US lawmakers not to advance the Anti-Semitism Awareness Act. Stern warns that incorporating the definition of anti-Semitism into law would be “unconstitutional and unwise” and would “actually harm Jewish students and have a toxic effect on the academy.”
The definition claims that certain types of criticism of Israel, or of its official ideology Zionism, are anti-Semitic.
“I disagree with BDS,” Stern writes, “but it is wrong to say that BDS is inherently a form of anti-Semitism, and even if it were it would be improper to try and censor pro-BDS campus activity, which is political speech and should be answered by more speech and education, not suppression.”
In early November, while tacitly condemning the Israeli government’s expanded crackdown on BDS activists who enter the country, the US State Department admitted that it recognizes that advocating for the boycott of Israel is a constitutionally protected right.