NJ lawmakers pass anti-BDS legislation

[FBaggins]

Joining the growing number of states countering the Boycott, Divestment and Sanctions (BDS) movement, the New Jersey legislature has approved a bill prohibiting the state from investing pension and annuity funds in companies that boycott Israel or Israeli businesses. The bipartisan bill, sponsored by Sen. James Beach (D-Camden) in the Senate and Pamela Lampitt (D-Camden & Burlington), Chris Brown (R-Atlantic) and Vincent Mazzeo (D-Atlantic) in the Assembly, as well as others, passed last week by a vote of 70 in favor, three abstentions, and two no votes. It had previously been approved 37-0 in the Senate. At press time, it was anticipated that Gov. Chris Christie would sign it into law.

...snip...

Under the bill, the State would have 120 days after passage to identify companies that violate the prohibition. It would have an additional 24 months to divest. The state’s $71-billion pension fund covers about 800,000 active and retired public employees. However, the Treasury Department isn’t aware of any companies with which the state has invested the funds that would violate the legislation, according to the Philadelphia Inquirer.

“We are grateful that once again members of the Senate and Assembly have made a strong statement in recognition of the historic cultural and economic ties between New Jersey and Israel,” stated Mark S. Levenson, president of the New Jersey State Association of Jewish Federations.

New Jersey and Israel trade more than $1.3-billion in goods and services annually, according to the bill.


http://www.jewishvoicesnj.org/news/2016-07-06/Home/NJ_lawmakers_pass_antiBDS_legislation.html

[ericson00]

1. BDS is un-American and anti-American; kudos to NJ

and even to Chris Christie for being useful for SOMETHING (assuming he signs it, which he prob will).

[FBaggins]

2. "Anti-American" indeed

It's worth noting that almost all of these votes have been near-unanimous.

Spinning the BDS movement as progressive against a supposedly conservative opposition is clearly deluded/dishonest (possibly both).

[6chars]

3. The great Jewish boycotters of history are un-American

[Little Tich]

4. Yet another unconstitutional attempt to protect the illegal settlements from criticism:

New Jersey Assembly Bill 925
(snip)

2. a. Notwithstanding any provision of law to the contrary, no assets of any pension or annuity fund under the jurisdiction of the Division of Investment in the Department of the Treasury, or its successor, shall be invested in any company that boycotts the goods, products, or businesses of Israel, boycotts those doing business with Israel, or boycotts companies operating in Israel or Israeli-controlled territory.

Read more: https://legiscan.com/NJ/text/A925/2016


NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
Source: U.S. Supreme Court, July 2, 1982
(snip)

1. The nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment. Pp. 458 U. S. 907-915.

(a) Through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, petitioners sought to bring about political, social, and economic change. Pp. 458 U. S. 907-912.

(b) While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott in this case. Pp. 458 U. S. 912-915.

Read more: https://supreme.justia.com/cases/federal/us/458/886/case.html

I suppose the US Constitution is of no importance when it comes to protecting the illegal settlements from criticism..

[FBaggins]

5. An unsurprisingly mistaken understanding of the constitution

The part you're missing is that choosing not to do business with bigots is in no sense prohibiting their exercise of free speech.

The state of NJ is not saying that you can't exercise your right to be a bigot... they're just saying that they aren't interested in investing their assets in your business.

The Bigotry, Discrimination, antiSemitism movement doesn't get to redefine reality just to suit their desires.

[Little Tich]

6. I thought you knew more about the US constitution than me, but in this case, apparently I was wrong.

This case is very similar to the NY executive order to stop state agencies from doing business with any institution or company that supports BDS. Apparently, state agencies using economic means to suppress entities and persons exercising their right to free speech can be seen as unconstitutional. The argument against the NY executive order can also be made against the NJ anti-BDS legislation, so I'll provide examples of that argumentation to prove my point about the NJ legislation (sorry for the long excerpts, but context...):

CUOMO AND B.D.S.: CAN NEW YORK STATE BOYCOTT A BOYCOTT?
Source: The New Yorker, JUNE 16, 2016

Last week, Governor Andrew Cuomo, of New York, signed an executive order directing state agencies to stop doing business with any institution or company that supports the Boycott, Divestment, and Sanctions (B.D.S.) movement, which aims to pressure Israel to reform its policies toward Palestinians. Cuomo portrayed the new policy as a simple tit for tat. “If you boycott against Israel, New York will boycott you,” he said at New York City’s Harvard Club, in a speech announcing the new policy.

Civil-liberties groups responded to the announcement with alarm. They were especially troubled by the state’s plan to draw up a list of entities that support B.D.S., an idea that drew comparisons to McCarthyism. “Government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression,” the New York Civil Liberties Union said in a statement. “Creating a government blacklist that imposes state sanctions based on political beliefs raises First Amendment concerns, and this is no exception.”

Does Cuomo’s order violate the First Amendment? The argument that it does is straightforward. The Supreme Court has held that boycotts are a form of free speech. Under the so-called unconstitutional-conditions doctrine, the government can’t force the recipients of “benefits” to give up constitutional rights—including the right to free speech and political affiliation. (For example, even though there’s no constitutional right to Medicaid, Congress couldn’t decide to provide it only to Democrats.) The Court has also specifically held that government contracts are a benefit subject to the unconstitutional-conditions rule. Put that all together and New York’s boycott of B.D.S. supporters looks shaky: the state is withholding its business from organizations because of their political positions.

But, according to several prominent scholars I spoke with last week, the issue isn’t so clear-cut. “While I wouldn’t say categorically that there’s a First Amendment violation here, I would say that it raises a number of thorny First Amendment issues,” Ronald Collins, a law professor at the University of Washington, said.

The first challenge is figuring out whether companies that join B.D.S. are engaging in free speech at all. New York officials argue that they aren’t, and that therefore the state’s boycott is on solid legal ground.

Read more: http://www.newyorker.com/news/news-desk/cuomo-and-b-d-s-can-new-york-state-boycott-a-boycott


Why Andrew Cuomo’s BDS Law Should Worry All Israel Supporters
Source: The Forward, June 17, 2016

(JTA) — If you’re a supporter of Israel and of the Jewish community, you should be very worried about a new executive order issued by New York Gov. Andrew Cuomo on June 5.

While billed as an initiative to prevent New York state from supporting the Boycott, Divestment, Sanctions (BDS) movement, the law actually constitutes a frightening attack on free speech while likely creating a backlash that will do harm both to Israel and the Jewish community.

Cuomo’s order mandates the creation of a list of every company worldwide that “engage[s] in any activity, or promote[s] others to engage in any activity, that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel for purposes of coercing political action by, or imposing policy positions on, the government of Israel.”

That is, a company might end up on the list because it actually chooses to boycott Israel. Or it might end up on the list because of a statement by its CEO or a board member. Since the executive order makes no distinction between what’s inside or outside the Green Line — Israel’s pre-1967 borders — a company that chooses to set up shop in Israel proper but avoid the settlements might find itself on the New York blacklist. Ditto a company whose leadership publicly calls for a distinction between Israel and the settlements, or who otherwise criticizes government policy.

I oppose boycotting or divesting from Israel. Yet the right to free speech means, in the famous words of Evelyn Beatrice Hall, that even if “I disapprove of what you say … I will defend to the death your right to say it.” The way to fight distasteful speech is with more speech, not by shutting down the other side.

Cuomo’s action constitutes a dangerous threat to this right. As explained by Lara Friedman of Americans for Peace Now, which also opposes BDS, the order seeks to achieve “the goal of chilling/suppressing such constitutionally protected free speech. It does this by defining such free speech – including the act of merely calling for boycotts – as de facto illegitimate.”

Read more: http://forward.com/opinion/343027/why-andrew-cuomos-bds-law-should-worry-all-israel-supporters/

[FBaggins]

7. Sorry. That's the one thing you were correct about

Your argument here breaks down to "A is basically the same as B... and look! B is unconstitutional"

The problems here are simple:

A is not the same as B:
- Executive orders are not the same thing as passed legislation
- Disinvestment is not the same thing as blocking contracts
- Blacklists are not the same thing as criteria for investment

You also haven't demonstrated that B is unconstitutional:
- You provided opinion pieces... not court precedent
- You forget that there have been anti-boycott laws (federal ones) on the books since the Arab League started pushing for boycotts back in the 70s. Courts have held those laws to be constitutional. Courts trump New Yorker opinions pieces.

Most claims like this boil down to "it's unconstitutional to punish someone for exercising a constitutional right"... which is fine as far as it goes... but they always badly misunderstand what qualifies as a "punishment". If a county posts a "no trucks over 2 tons" sign on a road... they aren't "punishing" truck drivers. Only people above a certain age can received Social Security... yet that doesn't "punish" people for their age. Governments have elected to steer contracts to minority-owned businesses without fear of being challenged for "punishing" Caucasians for exercising their constitutional right to own a business. The government has every right to direct where their retirement funds are invested - including avoiding bigoted companies.

[Little Tich]

8. Hopefully, this law or one of the other attempts to stifle BDS will be challenged in court. n/t

[FBaggins]

9. And how would such challenges be different from prior court challenges?

As I pointed out, there are laws (including federal laws) dealing with the earlier Arab-League boycott of Israel that have been upheld by multiple courts. What's different this time around?

[Little Tich]

10. Political boycotts are a form of protected expression as shown in NAACP v. Claiborne Hardware Co.

[FBaggins]

11. And the current laws don't forbid them that expression

Next?

[Little Tich]

13. That's it, basically.

But to show you that I'm not just making it up, I'm posting an article from the ACLU arguing that Cuomo's executive order violates constitutional rights. I think that the arguments against Cuomo's executive order can be used against any law targeting BDS:

Gov. Cuomo’s BDS Blacklist Is an Affront to Free Expression
Source: ACLU, by Simon McCormack, JUNE 9, 2016

New York Gov. Andrew Cuomo signed an executive order this week requiring state agencies and authorities to divest from any company or institution that supports the Boycotts, Divestment, and Sanctions movement targeting Israel. The order not only threatens to punish constitutionally protected political speech but also requires the state of New York to create a blacklist of allies of the movement, which BDS supporters describe as an effort to ensure human rights for Palestinians.

“It’s very simple: If you boycott against Israel, New York will boycott you,” Cuomo said when he announced the order.

The directive requires all agencies and departments over which the governor has executive authority as well as certain public benefit corporations, public authorities, boards, and commissions to divest funds from any company or institution supporting BDS. The entities are also banned from investing in those companies in the future.

The order itself makes clear that the activity the governor wants to punish is political in nature. But, as the Supreme Court made clear, government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression.

Read more: https://www.aclu.org/blog/speak-freely/gov-cuomos-bds-blacklist-affront-free-expression

[FBaggins]

12. And when anti-gay bakers decide that they're "boycotting"

That would protect their bigotry in the same way, right?

[Little Tich]

14. Most states have laws that makes it illegal to discriminate against persons due to their sexual

orientation or race (among other things).

But when it comes to constitutional protection against discrimination, I'm not sure. There's the 14th Amendment, but I'm not sure of its function or if there are other parts of the Constitution that protect against discrimination.