N.Y. Senate revives wildly unconstitutional bill barring funding of student organizations involved in ‘hate speech,’ ‘intolerance,’ or promotion of boycotts of Israel or U.S. allies

By March 2, 2018

For the third year in a row, the New York State Senate will again consider a bill that would bar funding to student organizations engaged in “hate speech” or the promotion of boycotts of Israel or certain nations allied with the United States. The bill — which, if adopted, would be patently unconstitutional — has twice passed in the state Senate, only to die in the Assembly.

The bill would ban public universities from funding not only student organizations that engage in boycotts themselves (expressive activity itself protected under the First Amendment), but also bar funding for any organization that so much as dares to express support for or “directly or indirectly promotes, encourages, or permits” boycotts of certain nations, or “intolerance” or “hate speech.”

The First Amendment has no exception for “intolerance” or “hate speech.”

The definition of “boycott” is also incredibly broad, encompassing “any activity … that will result in any person abstaining from commercial, social or political relations, with any allied nation” with the “intent to … cast disrepute upon … such allied nation.” That’s more than refusing to do business with a particular state. By its plain language, the definition would prohibit speech encouraging political leaders to reconsider relationships with any allied nation.

What constitutes an “allied nation” is also difficult to divine, relying on a list of treaty organizations (NATO), treaties (the Southeast Asia Treaty of 1954 or the Rio Treaty of 1947, except Venezuela), and individual states (Ireland, Israel, Japan, and the Republic of Korea). So we made a map of which states could or could not be criticized under this proposal:


But even with a map, it’s hard to find which nations fall within the scope of this bill:

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 [President Trump] 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.

As we’ve repeatedly explained, this proposal is patently unconstitutional:

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 on 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.

We hope that the third time’s the charm and that when this bill dies, again, the New York State Senate will cease rattling its sabers at students’ First Amendment rights. If lawmakers pass this bill into law, they should consider setting aside funds to pay the attorneys’ fees the state will have to pay when the law is stricken on First Amendment grounds.