Governor Cuomo's Executive Order on BDS

Today, my younger son Dan posted this on Facebook, in response to Gov. Cuomo’s announcement of an executive order by which the State of New York would boycott those who support the BDS Movement, which is aimed at the Israeli Government and Israeli businesses :

When I was growing up, I was constantly told that if Palestinians created a mass non-  violent movement against the Occupation, that they would win their struggle easily. 

Well, we've had a massive, international, non-violent movement for Palestinian human rights for the past 11 years, and not only is it being trampled at every turn, but our own state governments are participating in this repression.

I was the one who “constantly told” this to him.  I still believe that if a non-violent civil disobedience movement had emerged in the 1980s or even the 1990s, it might well have worked.  But every year that the Israeli government keeps and expands settlements on the West Bank, the harder it is for such a movement to succeed.  This is a tragedy for both Israelis and Palestinians.

Nevertheless, I oppose blanket BDS (as opposed to a boycott of Israeli goods produced in the Occupied Territories of the West Bank, which might make sense to me).  I do not think that blanket BDS will influence this Israeli government, or any likely future government, to change its West Bank policies. I applaud efforts of BDS supporters to resist the flat-out anti-Semitism of other BDS supporters, for whom BDS is a front for a general desire to throw the Israeli Jews into the sea, or worse. But I fear that may be a losing struggle.

Still, I am very troubled by Gov. Cuomo’s executive order.  Activists in New York should consider the impact of a 1995 Supreme Court case, Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819,  829 et. seq. (1995). There, the Supreme Court ruled that where a state government establishes a public forum for discussion of public issues, the state may not condition participation based on the viewpoint of a group. 

In that case, the University of Virginia (UVA) funded student publications, provided the student applicants met certain standards.  Students wishing to secure funding for a magazine with a religious viewpoint met all those standards, but UVA denied their application based on the proposition that it should not, under the First Amendment, fund religious magazines.  The Supreme Court disagreed, concluding that when a governmental institution creates a public forum, it may not discriminate based on viewpoint.

One of the questions raised by Gov. Cuomo’s executive order is whether, with respect to arts groups which get state funding, the state may condition continued funding on the groups’ commitment not to provide a forum for those opposing BDS.  We need more debate on BDS issues, not less.  It seems to me that Rosenberger may well preclude such conditions.

A way to look at this would be to work through the following hypothetical:  Suppose that, during the South African Apartheid period, a state chose to divest from companies doing business with the Apartheid Regime and to defund any group, otherwise receiving state funds, which provided a forum to those supporting Apartheid.  If a defunding of such groups participating in state-supported public forums would have been unconstitutional, the same reasoning would apply here.