New York State Senator Introduces Unconstitutional, Anti-Free-Speech Legislation

FIRE (Foundation for Individual Rights in Education) reports:

On June 6, New York state Senator Jack M. Martins (R-Nassau County) introduced Senate Bill S8017. The bill would bar state universities, city universities, and community colleges from funding any student organization that “promotes, encourages, or permits” boycotts against certain nations or permits “intolerance” or “hate speech.” The bill as written is flatly unconstitutional, and it is unlikely that any amendment would salvage it from infringing upon the First Amendment rights of college students in New York. The vaguely-written bill would prohibit funding for students who merely advocate for boycotts of some countries, but not others. As best as I can divine, these are the countries:

 

 

So, feel free to boycott Africa, the Vatican, Greenland, most of Asia, and Belize. But do not call on the president to reconsider our relationship with Pakistan, Israel, Turkey, or Cuba.

 

Senator Martins’ bill is the latest in a series of concerted efforts by elected New York officials to pressure university administrators to crack down on student speech critical of Israel. In March, New York’s state senate threatened to cut millions of dollars in funding to the City University of New York (CUNY) over concerns about “anti-Semitic” speech. Meanwhile 35 members of the New York State Assembly signed a letter calling on university officials to suspend chapters of Students for Justice in Palestine, a student organization critical of Israel. 

Last week, New York Governor Andrew Cuomo issued an executive order creating a statewide blacklist prohibiting funding to organizations that “promote others” to engage in a boycott of Israel—an order vague enough that it may well apply to student organizations.

Senator Martins’ bill, introduced the day after Governor Cuomo’s executive order and containing language similar to that order, provides, in relevant part:

The [State University of New York (SUNY), City University of New York (CUNY), or state community colleges] shall adopt rules that any student group or student organization that receives funding from [SUNY, CUNY, or community colleges] that directly or indirectly promotes, encourages, or permits discrimination, intolerance, hate speech or boycotts against a person or group based on race, class, gender, nationality, ethnic origin or religion, shall be ineligible for funding, including funding from student activity fee proceeds.

 

[…]

 

“Boycott” shall mean to engage in any activity, or to promote or encourage others to engage in any activity, that will result in any person abstaining from commercial, social or political relations, with any allied nation, or companies based in an allied nation or in territories controlled by an allied nation, with the intent to penalize, inflict, or cause harm to, or otherwise promote or cast disrepute upon, such allied nation, its people or its commercial products.

 

The bill defines “allied nation” as including any “member” of the North Atlantic Treaty Organization (NATO), any signatory state of the Southeast Asia Treaty of 1954, any signatory state of the Rio Treaty of 1947 (except Venezuela), Ireland, Israel, Japan, and the Republic of Korea (meaning South—not North—Korea.)

 

The bill’s language is broad, encompassing both actual boycotts and merely encouraging others to boycott, and would compel New York universities to distribute their funding in a viewpoint-discriminatory basis. That is, New York universities could fund groups that discourage boycotts of Israel (or other “allied nations”), but not those that encourage it. As the Supreme Court has made plainly clear, viewpoint-discriminatory funding of student organizations is not permitted at public universities and colleges. In fact, the Supreme Court has held that, “When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.”

 

Worse, the definition of “boycott” is so vague that it would prohibit student organizations from calling on “any person”—including the President of the United States and other elected officials—to abstain from “political relations” with an allied nation. That means that if your student organization wants to call on Congress to reconsider its relationship with the state of Turkey, it will be ineligible for funding, because Turkey is a member of NATO.

 

The bill is also viewpoint-discriminatory in that it prohibits boycotts of some states, but not others. It’s nearly impossible to figure out which states can be criticized, and which cannot:

• What does it mean to be a member of NATO? Does it include members of the Partnership for Peace, like Austria, Finland, and Sweden? Perhaps not, as Ireland is also a member of the Partnership for Peace, but the Senate Bill explicitly names Ireland as an ally—which it wouldn’t have to do if membership in NATO’s Partnership for Peace were sufficient to count as an “ally.”

• What if your organization thinks it was wrong for the United States to end its trade embargo against Cuba? Can you call on the next president to reverse course? Cuba is a signatory to the Rio Treaty, but it was suspended during the Cold War.

• Does the restriction on boycotting apply to any state which signed the Southeast Asia Treaty of 1954, but later withdrew, like Australia and Pakistan? What about Vietnam, Cambodia, and Laos, which were protected by the Southeast Asia Treaty Organization, but prohibited by another treaty from signing the 1954 treaty?

• The bill applies to those who signed the Inter-American Treaty of Reciprocal Assistance of 1947 (also known as the “Rio Treaty”), except Venezuela. What about Mexico, which denounced the treaty in 2002? Or Ecuador, which denounced it in 2014? Perhaps Mexico and Ecuador are included, as Venezuela also denounced the treaty, but is explicitly excluded from this bill’s protection.

• Do territories of the United Kingdom that gained independence after the United Kingdom entered into a treaty count? 

These difficult questions might be at least capable of resolution—if university administrators and student government representatives consult with scholars of international law. I am, admittedly, not such an expert, so the map above is only an educated guess.

 

Some of the bill’s other provisions, meanwhile, are so subjective that they can’t be objectively defined. The bill would bar funding for any student group that “directly or indirectly promotes, encourages, or permits […] intolerance [or] hate speech.”

 

First, “hate speech” is not an exception to the protections offered by the First Amendment. Definitions of what might constitute “hate speech” vary widely, almost always falling upon a subjective definition of what constitutes offensive speech—which is protected by the First Amendment. This bill doesn’t even bother to attempt to define “hate speech.”

 

Second, even if “hate speech” were capable of objective definition, the bill could be read to require student organizations to actively prevent “hate speech” and “intolerance,” lest they be be seen to “permit” such speech. Didn’t do enough to prevent someone on your campus from making an offensive remark? No more funding.

 

And these are just the problems with the explicitly speech-restrictive parts of the bill. Even assuming that the state could deny funding to those who actually engage in a boycott—a highly dubious proposition—it cannot punish students for taking a position and voicing it.

 

While FIRE takes no position on the Israel-Palestine dispute or on the merits of the boycott, divest, and sanction movement (except to the extent that such a boycott would be incompatible with the canons of academic freedom), those opposed to it should not do so by restricting the ability of students and faculty to organize, debate, and, if they so choose, encourage such actions by others.

 

Senator Martins should withdraw his bill. If it is not withdrawn, and if the state of New York unwisely adopts it, FIRE and others will continue to oppose it.