A political crackdown on the boycott, divestment, and sanctions movement against Israel’s occupation of Palestine has spread over the past year, and in the past month, it has sharply escalated with New York Governor Andrew Cuomo’s executive order. Hillary Clinton has also shown she would aggressively promote cracking down on the BDS movement if elected president.

In this week’s episode of the “Unauthorized Disclosure” weekly podcast, Palestine Legal founder and director Dima Khalidi joins the show to talk about Cuomo’s executive order against the BDS movement. The executive order includes a provision to blacklist companies or groups which boycott or divest from Israel in clear violation of the First Amendment.

Khalidi breaks down the constitutional and free speech concerns created by this order and also places it within the context of a broader trend in state legislatures to crack down on the BDS movement. She also highlights recent cases where students were criminalized for their Palestinian solidarity activism.

During the discussion, hosts Rania Khalek and Kevin Gosztola recap what unfolded with the Democratic National Convention Platform Committee, where individuals appointed by Hillary Clinton and DNC Chairwoman Debbie Wasserman Schultz blocked key progressive policies from inclusion in the platform.

Gosztola shares reporting on the New York state meeting, where a Clinton delegate hit a Sanders delegate and young woman of color with his cane. Khalek talks about the latest Republicans and neoconservatives to endorse Clinton.

The two-part episode is available on iTunes. For a link to the interview (and also to download the interview), go here. A page will load with the audio file of the interview. For a link to the discussion (and also to download the discussion), go here. A page will load with the audio file of the interview. The file will automatically start playing so you can listen to the episode.

Interview with Dima Khalidi

Discussion on DNC Platform Committee

Below is a partial transcript of the interview with Palestine Legal director Dima Khalidi:

KHALEK: Governor Andrew Cuomo signed an executive order that punishes companies or entities or groups that participate in the boycott, divestment, and sanctions (BDS) movement against Israel. So, why don’t you start off by telling us what that means for free speech and then we can move from there.

KHALIDI: This executive order as a bit of a surprise after several months of wrangling within the New York state legislature over bills that would have done similar things. That is, to penalize companies and institutions that are deemed to be boycotting Israel or engaged in the BDS movement. There was huge opposition to these bills in the New York legislature. Over 100 groups signed a petition opposing the bills. There was definitely some reticence among some legislators to move the bills forward because of the constitutional concerns that Palestine Legal and other groups were raising, including the NYCLU, the Center for Constitutional Rights, National Lawyers Guild, etc.

So, this executive order really did what the legislature was unable to do, and it’s really problematic certainly for free speech concerns. Boycotts are very clearly protected First Amendment activities when they aim to create social, political, and economic change. The Supreme Court made this very clear when it said that a boycott of white businesses by the NAACP in the 1960s was protected First Amendment activity, and the BDS movement is really no different.

It’s attempting to address injustices against Palestinians, and it’s trying to pressure Israel to abide by international law through boycotts, divestments, and ultimately, sanctions. It’s a very problematic way of penalizing those who take this political position, who are trying to affect this change, because of human rights concerns.

KHALEK: Even for people who don’t support BDS, this is something that should be concerning because if you start penalize groups that participate in boycotting Israel then what’s to stop another similar amendment or law being passed that also penalizes groups for say boycotting fossil fuel companies, which is another movement that exists at the moment? What could the repercussions be beyond BDS?

Could you also talk about the blacklist element of this? From what I understand, Andrew Cuomo plans to draw up some sort of blacklist of companies that are involved in boycotting Israel. And on how on Earth can you even decide? There are companies that aren’t invested in Israel. Are you going to investigate them to find out whether they’re not invested for business reasons or if it’s political? Then if it’s political, then penalize them? How does that even work?

KHALIDI: You hit on two major problems with the executive order and other similar legislation happening around the country. With regards to your first point, this is definitely a situation where the government—in this case, the governor—is issuing his executive order based his own political views, and that is against BDS, supporting Israel, and denying Palestinian rights. He could similarly make such a decision, as you say, if he was in the pocket of fossil fuel companies and wanted to dissuade from boycotting fossil fuel companies.

That’s why this really is unconstitutional. The government is not allowed to set conditions on government benefits in order to thwart First Amendment activities, to stop or dissuade people from engaging in First Amendment activities, and that’s precisely what the government is doing here. So, yes, precisely. It could be a bad precedent if it were to be upheld by the courts, which we think it wouldn’t be because of these constitutional concerns.

With regard to the blacklist, that’s another constitutional problem with the executive order. The executive order requires the the state to come up with the list of those who it deems engaging in BDS or promoting BDS. This is just such a vague and potentially overbroad standard that it could encompass anybody who maybe posts something on Facebook. And this directly targets institutions and companies so if a company were to post something about BDS on Facebook, is that promoting BDS? Who is making these decisions? Do we have government officials scouring the internet to root out people promoting BDS or companies that are promoting BDS?

The vagueness of this, the inability of ordinary people to understand what it means, is a huge problem, and the effect is to chill speech, and the intent really is to chill speech and First Amendment protected activities on this issue. For a company that decides not to do business in Israel, who is the state to say whether that decision is based on BDS or on business considerations or something else?

It also prevents companies from engaging in socially responsible investments or following international law. There are just a host of really concerning things about this executive order and really the intent is to put a damper on this growing human rights movement that Cuomo happens not to like.

KHALEK: Does this in any way impact groups that receive government funding, like say colleges who have various groups that decide to engage in BDS?

KHALIDI: It’s possible. Again, the executive order is vague enough that people don’t understand the extent of its applicability. We have professors and student groups and nonprofit organizations coming to us asking, does this apply to me? I don’t understand this. And we can’t say with any certainty what it applies to and what it doesn’t. The order could be interpreted to bar state contracts with nonprofit institutions, and it certainly bars state investment in such companies institutions. It could be very wide-ranging if it were to be interpreted broadly.

GOSZTOLA: I know there are many states where anti-BDS laws have been enacted. Would you address this trend, the fact that over the past year we’ve seen quite a few politicians across the country embrace this anti-BDS movement?

KHALIDI: We’ve seen, I believe, nine laws passed in different states around the country; doing similar things, penalizing organizations that boycott Israel. It’s very clear that this is being precipitated by pressure from Israeli advocacy groups in the U.S., even by Israel itself. These groups are trying to stop the BDS movement from growing, and they are finding eager folks in legislatures around the country to do their bidding.

We’ve seen several Israeli advocacy groups publicly say they are promoting these bills. We’re seeing far right groups promoting these bills, and we’re expecting similar legislation really to pop up around the country. And this legislative effort is hand in hand with a wider effort to suppress speech around Palestinian rights, and we’re seeing a lot happening on campuses. For example, Israeli advocacy groups pressure universities to punish students and faculty speech on Palestine. So, it’s really part of a very large, very well-funded effort to silence a growing movement for Palestinian rights.

For the full interview with Dima Khalidi, go here.