Did Governor Cuomo suspend First Amendment rights?

Question

Yesterday, Governor Cuomo of New York issued an executive order that public funding will be slashed from all companies or businesses operating in the state of New York that openly boycott or sanction Israel.

I'm not anti-Israel; however, I do support the ability of my peers to be anti-Israel. That being said, since Governor Cuomo is dealing with public funds, is this not a suspension of the First Amendment, namely free speech?

I can imagine a similar scenario where an executive order is passed diverting all public funds from companies or businesses who are... anti-gay, for example. Or anti-nationalism. Or anti-interventionist.

If this does conflict with the Bill of Rights, how was this executive order issued? If this does not conflict with the Bill of Rights, what is this explanation for why this does not conflict with the First Amendment?

Answer 1

The scenario highlighted by your question already exists. Federal policy exists where the Government can steer federal monies away from private companies that have discriminatory practices, under Executive Order 11246. Business that perform contract work for the Federal government are prohibited from "engaging in workplace employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin."

The order from Cuomo, or the Federal version, do not infringe on the Individual right to Free Speech. The government isn't stopping people from speaking.

Instead, they are stopping the Government endorsement of that speech with the TAX revenues taking from the populace. Similarly, look at recent bipartisan action in Congress to pass Combating BDS Act of 2016, which would further empower Federal and State governments to direct money away from institutions supporting economic warfare against Israel.

Answer 2

TL;DR: Yes, it does restrict free speech, but by how much is debatable.

I don't think you can draw a line in the sand to generally determine if something is restricting free speech. Consider the following scenarios:

1. In the cafeteria of a retirement community where residents pay for their meals, on one particular day the cafeteria decides to make the meals free. However, if you are wearing an orange shirt that day you must either change into a different color shirt, or pay for your meals that day.

2. In the cafeteria of a retirement community where meals are provided for free, if you are wearing an orange shirt you must either change into a different color shirt, or pay for your meal.

3. In the cafeteria of a retirement community where residents give their entire life savings in exchange for living there for the rest of their lives, if you are wearing an orange shirt you must either change into a different color shirt, or pay for your meal.

The expected effect of each scenario is:

1. Residents that have very little money would value the free meal more than those with plenty of money. The most likely outcome is that very poor residents would not wear orange shirts.
2. Residents with no money have no choice but to not wear orange shirts. Residents with very little money would probably not wear orange shirts. Wealthy residents can wear orange shirts without any worry.
3. All residents have no money and therefore no residents can wear orange shirts unless they want to go hungry that day.

Effectively all of these scenarios contain some element of restricting free speech and/or maintaining control of some sort, though they differ greatly in severity and which groups are more directly impacted.

The definition of public funds isn't in question, but perhaps it is dependent on what the tax rate is that generates those funds. At a 100% tax rate where all provisions come from public funds, there is no choice one can make (scenario 3). Anything less than that is a blurred line. Some businesses cannot survive without public funds, others can do just fine.

As a side note, this reminds me of when Louisiana had a loophole which made the effective drinking age 18 years old, but when faced with losing federal highway funding, they caved and raised it up to 21 in line with the rest of the US.