NY Governor boycotting businesses boycotting Israel

[Ziggurat]

That's just defamatory. I have not advocated discrimination, and you know it.

Sure you have. The BDS movement is engaging in discrimination, and you're supporting them.

You did, when you raised the idea that dress codes are speech in the context of my argument.

Nope. I indicated that dress codes are conveyed by speech. And I never indicated that anti-discrimination laws prohibited dress codes, as you claimed. Quite the reverse: I explicitly said they do not. The fact that you mistook my position as being completely opposite to what it was despite an explicit declaration is proof that you cannot comprehend what I'm saying.

Amazing. You actually believe that targeting boycotts of Israel, and only boycotts of Israel, is content-neutral.

Given that it isn't directly a restriction on speech at all, but on an economic activity, yes.

This is where you fundamentally fail, and will continue to fail. The state is evaluating economic action. That is the basis for this regulation.

Until you come to grips with that, basically nothing else you say will matter.

 

[Beerina]

A couple of days ago, the North Carolina supreme court gave its own state a sock in the mouth over a law that attempted to define certain online, harassing postings as conduct rather than speech.

 

[mumblethrax]

Sure you have. The BDS movement is engaging in discrimination, and you're supporting them.

I don't think a sleazy imputation is the best way of supporting your false accusation.

Nope. I indicated that dress codes are conveyed by speech.

And that doesn't work to refute my argument, because dress codes aren't the relevant speech act--the one that is suppressed, the one that the state seeks to suppress. It's neither here nor there that it's conveyed by speech, because it isn't suppressed by anti-discrimination laws.

Speech in support of BDS surely would be. How else could the state identify participants in the boycott other than by gathering expressions of support?

Given that it isn't directly a restriction on speech at all, but on an economic activity, yes.

That doesn't make sense. If it isn't speech, then there can't be a content-neutral restriction of speech on it. You were probably just hedging your bets with this stuff, but now you're back to insisting that there's no speech here at all.

This is where you fundamentally fail, and will continue to fail. The state is evaluating economic action. That is the basis for this regulation.

So you keep saying, but you're still trying to divide the indivisible. A boycott is economic (in)action, and it's also political action. You can't evacuate it of political content simply by calling it economic action.

Consider that you can get a lifetime membership in the Libertarian Party by sending them $25. That's clearly an 'economic action', but it's also a political action. Moving to punish someone for doing so is unavoidably suppressive of political expression.

Until you come to grips with that, basically nothing else you say will matter.

The chess-playing pigeon struts. I don't particularly like referring you to the courts, since I think this is better understood as a moral/political problem (and those are the terms in which you object to BDS before switching to the more legalistic approach to defend Cuomo's actions), but this too is wrong as a matter of law. See NAACP v. Claiborne Hardware Co.^WP

 

[Ziggurat]

Speech in support of BDS surely would be. How else could the state identify participants in the boycott other than by gathering expressions of support?

And how else can you determine that a customer was denied service because of racism and not a dress code?

Speech critical of Israel which is not accompanied by an economic boycott is not affected. Why?

So you keep saying, but you're still trying to divide the indivisible.

Not at all. You keep claiming it's indivisible, but with no evidence.

A boycott is economic (in)action, and it's also political action.

And refusing to serve black customers is also political action.

You can't evacuate it of political content simply by calling it economic action.

I don't need to. That's what you don't get. And I'm not simply calling it economic action, it is.

Consider that you can get a lifetime membership in the Libertarian Party by sending them $25. That's clearly an 'economic action', but it's also a political action. Moving to punish someone for doing so is unavoidably suppressive of political expression.

Absolutely. But why? Not because it's a political action, but because there is no method to distinguish between the Libertarian Party and other parties which doesn't run afoul of various constitutional restrictions. But donating to ISIS (an undoubtedly political act) is illegal. Is that suppressive of political speech? Perhaps. But ISIS can be distinguished from other political parties, and the restriction can be enforced on that basis.

Economic discrimination can be distinguished from other political actions and subject to government action without implicating constitutional rights.

The chess-playing pigeon struts.

Still no originality.

I don't particularly like referring you to the courts, since I think this is better understood as a moral/political problem

I don't care what you like. You made a claim that New York State didn't have the legal authority to make this move. The courts have authority to make that determination. Had you simply said you didn't think the state should do this, well, that would have been a completely different argument, and much of what I said wouldn't matter. But you didn't. Why? Because despite your pretense, you're the one crapping on the chess board.

but this too is wrong as a matter of law. See NAACP v. Claiborne Hardware Co.^WP

Better. But still not enough. Private individuals cannot be regulated to nearly the same extent as public businesses can. For example, private citizens cannot be required to shop at stores run by black (or white) owners, but public businesses can be required to serve black (and white) customers and hire black (and white) employees.

Furthermore, that trial was about criminal liability. New York is not imposing any criminal or even civil penalties on anyone, and is not requiring any businesses to do anything. The relevant standards are going to be much more relaxed as a consequence.

 

[Planigale]

Not in the least. He's simply taking the position that the state will not deal with companies which discriminate on the basis of nationality against Israelis. It's anti-discrimination. The government does that all the time, and this is a fairly mild form of it.



No, it isn't. Nobody's speech is being silenced. And boycotting Israel isn't merely speech, it's also commerce. But even that isn't being prevented.



Of course it isn't. It would be an abuse of government power if it did target specific groups.



Yes: it's targeting the act of discrimination. Again, government does that all the time. This is an especially mild form of anti-discrimination action.



Everyone is free to express their opinions all they want to. But when you refuse to do business with people, that's not merely speech anymore. That's why it's illegal to refuse to serve customers at a restaurant on the basis of race, for example. Do you object to those anti-discrimination actions?

Cuomo is in the right here (not something I would say very often about him), and you're in the wrong.

If you are a business that does not do business with Israeli companies (e.g. a whole food / organic co-op that produces and sells produce and buys in from other local organic producers) but being as it is a socialist co-op decides to pass a motion to support the BDS movement are you affected? Presumably a business expressing support is protected by free speech? If in response to enquiries you put up a sign saying none of our veg are from Israeli / occupied territories are you then subject to sanctions by the state of NY? (Even though you never traded anyway?). If you make a specific decision not to buy veg from Israel because of the environmental impact of Israeli agriculture (it really is terrible almost as bad as California!) and put up a sign saying we do not buy Israeli produce because of the environmental impact but this is not a BDS policy are you exempt?

The whole concept of being able to extend anti discrimination action to countries as opposed to individuals seems foolish. Is NY going to act against e.g. those who will not buy French wine? Does a buy american policy become illegal? If this is anti-discrimination then it has to apply to all, other wise it is by definition discriminatory.

 

[Ziggurat]

If you are a business that does not do business with Israeli companies (e.g. a whole food / organic co-op that produces and sells produce and buys in from other local organic producers) but being as it is a socialist co-op decides to pass a motion to support the BDS movement are you affected?

Your choice of hypotheticals seems a little odd, since it's not really hypothetical.

http://legalinsurrection.com/2015/05/huge-bds-loss-greenstar-food-coop-rejects-israel-boycott/

You can read all about why they decided not to join the boycott.

Does a buy american policy become illegal?

Why are you talking about illegality? This recent move doesn't make anything illegal.

 

[Aepervius]

The questions are simple:

Should you be free to not do business with Israelis?

And:

Should the state of New York be free to not do business with you, if you so choose?

To me, the answers to both questions are obviously yes and yes.

Any government apparatus should only be able to discreminate contractor based on :
1) an offer appeal, showing price and service offered
2) past contracts quality result
3) respect of labor laws
4) nothing else

As soon as you enter anything else like lobbying against Israel or whatever country, then you are doing politic and possibly infringing speech of people, since it was decided money is speech.

I am guessing that you think the answer should be yes only because it goes in the direction of your wind.

Should suddenly the local government decide not to do affair with trump supporter, or republican, or contractor lobbying against abortion or whatnot.... Well I am guessing the answer would be slightly different.

 

[Ziggurat]

Any government apparatus should only be able to discreminate contractor based on :
1) an offer appeal, showing price and service offered
2) past contracts quality result
3) respect of labor laws
4) nothing else

Whatever the merits of restricting government decisions to this limited basis (and there are merits, to be sure), that is not how we have been doing things for a long time now. There are many, many more examples than just this NY/BDSM thing involving government contracting rules (such as prevailing wage rules), and many of those other examples are actually far more significant.

I'm not opposed to seeing government contracting rules revised to look like what you propose, but I don't hold any hope that it's actually going to change. It's just too lucrative a way for legislatures to buy votes from favored constituencies for them to willingly give up that tool.

 

[mumblethrax]

And how else can you determine that a customer was denied service because of racism and not a dress code?

This was already answered: you do so by examining the circumstances surrounding the denial of service.

This is a poor choice of speech acts to focus on, because it isn't suppressed. The relevant, analogous speech act is the one that is suppressed, the one for which a dress code might serve as a fig leaf: "We don't serve your kind here."

Speech critical of Israel which is not accompanied by an economic boycott is not affected. Why?

This isn't true. Merely encouraging others to boycott (without boycotting yourself) will land you on Cuomo's blacklist.

Even if it were true...who cares? The fact that the order targets some political expressions and not others has no bearing on its legitimacy. It only tells us that Cuomo attends to his window dressing.

Not at all. You keep claiming it's indivisible, but with no evidence.

Because this is not an empirical question, but rather involves elementary reasoning about the properties of an act.

And refusing to serve black customers is also political action.

I have a difficult time understanding it that way, but sure, if you like. This too has been asked and answered--narrow exceptions have been made in accordance with ensuring participation in the economy by protected classes. None of them apply in this case.

I don't need to. That's what you don't get. And I'm not simply calling it economic action, it is.

You do need to, which is why you keep trying. Here we have your usual difficulties in reading holistically--I didn't deny that it is an 'economic action', I said it doesn't stop being a political action when you note that it is an economic action.

Absolutely.

You should recognize that the argumentative burden shifts here--if you agree, then it isn't sufficient to identify an economic component of a political expression. You need more.

But why? Not because it's a political action, but because there is no method to distinguish between the Libertarian Party and other parties which doesn't run afoul of various constitutional restrictions.

Oof.

Do you really believe that if a governor elected as an independent decided to crack down on all 'economic activity' in support of all political parties, this would be permissible? And what are these 'various constitutional restrictions' that would not allow us to single out a political party, but would allow us to single out a political boycott?

But donating to ISIS (an undoubtedly political act) is illegal. Is that suppressive of political speech? Perhaps. But ISIS can be distinguished from other political parties, and the restriction can be enforced on that basis.

Do you think I'm saying that it's impossible to overcome the presumption of liberty with respect to political activity? I'm not. I'm saying you need a robust justification, and not just some insidious ******** about how a boycott is an action, not speech.

Economic discrimination can be distinguished from other political actions and subject to government action without implicating constitutional rights.

Yes, in narrow cases it probably can be. So tell me how you do it here.

Still no originality.

I'm sure the Romanian judge will dock me accordingly, but Cain deserves credit for nailing your behavior in this thread.

I mean, you not only decided that I was wrong about this, you arrogantly declared that being wrong about it meant that what I had to say didn't matter. Now that you have been shown to be wrong...shouldn't you agree that your opinion doesn't matter?

Better. But still not enough. Private individuals cannot be regulated to nearly the same extent as public businesses can. For example, private citizens cannot be required to shop at stores run by black (or white) owners, but public businesses can be required to serve black (and white) customers and hire black (and white) employees.

It's 'public accommodations', not 'public businesses', but you might want to do a close read of the name of that case. No private individuals named.

You also might want to consider that that boycott specifically targeted white merchants, before you go further down this 'economic discrimination' path.

Furthermore, that trial was about criminal liability.

Incorrect--a danger implicit in opining about cases you haven't even glanced at.

"(b) Similarly, the First Amendment restricts the ability of the State to impose liability on an individual solely because of his association with another. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."

New York is not imposing any criminal or even civil penalties on anyone, and is not requiring any businesses to do anything. The relevant standards are going to be much more relaxed as a consequence.

The relevant standard is whether the state is retaliating against legal speech, and County Commissioners v. Umbehr makes it clear that this is not a permissible state action.

More to the point, you personally support Cuomo's cracking down on political activity he doesn't like.

 

[Ziggurat]

Do you really believe that if a governor elected as an independent decided to crack down on all 'economic activity' in support of all political parties, this would be permissible?

Define exactly what you mean by "crack down".

It's 'public accommodations', not 'public businesses', but you might want to do a close read of the name of that case. No private individuals named.

I didn't say private individuals were named. But the claim was that this organization was liable for the actions of individuals acting as individuals.

You also might want to consider that that boycott specifically targeted white merchants, before you go further down this 'economic discrimination' path.

Not relevant. Such discrimination by individuals was and is not illegal. Therefore nobody can be held liable for it.

Incorrect--a danger implicit in opining about cases you haven't even glanced at.

The fact that you clearly didn't understand my argument doesn't mean I didn't understand the case.

"(b) Similarly, the First Amendment restricts the ability of the State to impose liability on an individual solely because of his association with another. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."

Does Cuomo's act impose liability on anyone, criminal or otherwise? No, it does not.

The relevant standard is whether the state is retaliating against legal speech, and County Commissioners v. Umbehr makes it clear that this is not a permissible state action.

No.

That case specifically talks about liability. It's right there, in your own quote. It says nothing about other actions the state might take, such as denying state contracts to such individuals or groups. It's more than a little ironic that you display such a fundamentally misunderstand of the scope of the case right after claiming I hadn't even given it a cursory examination.

 

[Planigale]

Your choice of hypotheticals seems a little odd, since it's not really hypothetical.

http://legalinsurrection.com/2015/05/huge-bds-loss-greenstar-food-coop-rejects-israel-boycott/

You can read all about why they decided not to join the boycott.



Why are you talking about illegality? This recent move doesn't make anything illegal.

You are right a bad choice of phrase. instead of illegal try 'contrary to the views of the governor and so subject to punishment by deprivation of equal access to competition for business / contracts / grants'. No doubt other views contrary to the incumbent will become 'punishable' in future. Perhaps businesses that do not allow guns on the premises, or allow the sale of contraceptives, or give grants to opposing politicians. Once you allow the government to choose contractors on the basis of politically 'correct' behaviour you are heading for dictatorship.

 

[Ziggurat]

Once you allow the government to choose contractors on the basis of politically 'correct' behaviour you are heading for dictatorship.

Then we've been heading that way for a long time now, and this shouldn't even be the item of biggest concern.

 

[mumblethrax]

Define exactly what you mean by "crack down".

Do I really need to do that? Broaden the Libertarian Party example--now 'economic activity' in support of any political party will result in punitive action by the governor.

Not relevant. Such discrimination by individuals was and is not illegal. Therefore nobody can be held liable for it.

It is relevant, because it puts rather a dim historical cast on your 'economic discrimination' arguments. Discrimination on the basis of race in service of racial equality has long been regarded as a permissible, even laudable tactic.

The fact that you clearly didn't understand my argument doesn't mean I didn't understand the case.

The fact that you thought it was about criminal liability does.

No.

That case specifically talks about liability. It's right there, in your own quote. It says nothing about other actions the state might take, such as denying state contracts to such individuals or groups. It's more than a little ironic that you display such a fundamentally misunderstand of the scope of the case right after claiming I hadn't even given it a cursory examination.

Ha. These are two different cases. Ironic in the Alanis Morisette sense.

 

[Ziggurat]

Do I really need to do that? Broaden the Libertarian Party example--now 'economic activity' in support of any political party will result in punitive action by the governor.

Specify the action.

The fact that you thought it was about criminal liability does.

Criminal liability was absolutely part of the case.

https://www.law.cornell.edu/supremecourt/text/458/886

"Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."

Ha. These are two different cases. Ironic in the Alanis Morisette sense.

Oh, hey, you caught my first mistake! Congratulations.

 

[mumblethrax]

Specify the action.

Strange that you only need this specified now.

Assume a directly analogous action. Divestment.

Criminal liability was absolutely part of the case.

Didn't say it wasn't. But it wasn't merely about criminal liability, which you clearly believed to be the case.

Oh, hey, you caught my first mistake! Congratulations.

This is a moment for celebration, since it's the first among dozens of erroneous claims that you've acknowledged.

 

[Ziggurat]

Strange that you only need this specified now.

Assume a directly analogous action. Divestment.

I'm not convinced it would be unconstitutional. It would certainly fail spectacularly for political reasons, though.

Didn't say it wasn't. But it wasn't merely about criminal liability, which you clearly believed to be the case.

I never believed anything of the sort. Perhaps I wasn't sufficiently clear, but my reference to criminal liability was related to the fact that the boycott activities were protected (ie, not criminal acts), and thus civil liabilities cannot flow from them either.

This is a moment for celebration, since it's the first among dozens of erroneous claims that you've acknowledged.

No. Rather, it's the first time you've been correct in claiming that I made a mistake. But sure, celebrate that if you want, it's a milestone of sorts.

 

[Darth Rotor]

At what point does this sort of thing cross the line into foreign policy? States aren't allowed to conduct foreign affairs, that's for the federal government.

This is the first thing that came to my mind as I read the story, and I feel that the governor may be treading on the Commerce Clause here.

Has this executive order been challenged? Who has standing to challenge it?

 

[Donal]

This is the first thing that came to my mind as I read the story, and I feel that the governor may be treading on the Commerce Clause here.

Has this executive order been challenged? Who has standing to challenge it?

Basically, it would be up to the courts. another weird part about this storry is the state senate already passed a similar bill. It is just waiting on the assembly to vote on it.

I've also read that several states are adopting similar bills with almost the exact same wording. This could be another case of a private organization, like ALEC, pushing legislation to set a de facto national policy.

 

[mumblethrax]

I'm not convinced it would be unconstitutional. It would certainly fail spectacularly for political reasons, though.

That wasn't the question, which you are artlessly evading. Do you, personally, believe that such action would be permissible, in the same way that you have said that you think Cuomo is in the right here?

I never believed anything of the sort.

You made it very clear that you did, but I have no further interest in combating your revisionism about your own erroneous beliefs.