Alexandria, VA – This morning, Center for Competitive Politics (CCP) Chairman Bradley A. Smith and President David Keating sent a letter to New York Governor Andrew Cuomo urging him to modify or rescind his Executive Order opposing the “BDS” campaign against Israel. The Order infringes on First Amendment speech rights.
Here are excerpts from the letter:
[The Order] constitutes an unacceptable and unconstitutional assault on freedom of speech and expression, and we urge you to modify or rescind the Order….
It is well established that, under the market participation doctrine, states have the power to place certain conditions on state investments without running afoul of the Commerce Clause of the U.S. Constitution….
[The Executive Order] goes further, however, by specifically basing state investment decisions not only on whether a company or other institution complies with state laws, but on a company’s or institution’s willingness to surrender its First Amendment rights as a condition of state investment. Indeed, under the Order, an institution … must refrain not only in its own actions, it may not even “promote others” to engage in certain activities pertaining to the state of Israel. This appears to run afoul of the doctrine of “unconstitutional conditions.” See e.g. O’Hare Truck Svc. v. City of Northlake, 518 U.S. 712, 726 (1996). Under that rule, the Supreme Court has held that a state may not condition the awarding of government contracts on a contractor’s political affiliations or speech about public issues. Id.; Board of Commissioners v. Umbehr, 518 U.S. 668, 675 (1996) (“The First Amendment’s guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern,” and clarifying that the right also applies to government contractors) (emphasis in original).
The Order’s breadth is, we believe, unprecedented, applying not only to “any activity” but to merely “promoting” others to engage in certain lawful, indeed Constitutionally-protected, activities. Mere criticism of Israeli government policies, even those unrelated to the issues motivating the so-called “BDS” campaign, could be deemed to fall within the Order….[T]he very judgments involved in determining which companies and institutions have “promote[d] others” to engage in BDS activities … will broadly chill public discourse….
[State] power as a market participant to place conditions on … investments … is not unlimited, and may not – and, equally important to liberal minds and mores, ought not – be used to attempt to limit public advocacy on issues of policy in violation of the First Amendment. This is just as inappropriate in the service of an anti-“BDS” policy as it would be if another state announced that it would divest from any company that refused to use its resources to promote a “BDS” policy.
