A New Loyalty Oath: New York’s Targeted Ban on State Funds for Palestinian Boycott Supporters

Introduction

New York State’s Executive Order 157 (2016) prohibits a single political group from receiving state funds: supporters of Palestinian Boycott, Divestment, Sanctions (BDS), a civil movement aimed at influencing Israeli government policy. This article analyzes the constitutional validity of New York’s order and similar official sanctions on BDS throughout the United States. I argue that Executive Order 157 runs afoul of the First Amendment in two ways. First, it targets BDS because of its communicative intent, in violation of the First Amendment’s “hard stop” on government regulation with the improper purpose of suppressing a specific message. Second, it fails to comport with the First Amendment’s limits on restrictions of government contractor speech, overburdening contractors’ and the public’s right to make and hear political speech without valid justification. Executive Order 157 embodies a troubling trend toward state condemnation of disfavored political opinion and its clear disregard for constitutional mandates urges legal challenge.

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