Last June, the New York State Senate passed an alarming bill that, had it also passed the state assembly, would have barred funding to student organizations engaged in “hate speech” or the promotion of boycotts of Israel or certain nations allied with the United States. That bill — S8017 — failed because it was passed at the tail end of the legislative session and did not clear the New York State Assembly. Today, however, the New York State Senate revived the bill — as S2493 — and passed it unchanged, renewing the possibility that the state of New York could be on a collision course with the First Amendment.
S2493 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’s primary sponsor explained in a press release that the bill was in response to anti-Semitic incidents allegedly perpetrated by the student organization Students for Justice in Palestine, although independent investigators commissioned by the City University of New York system concluded in September that their “investigation does not support” calls to ban SJP from CUNY campuses.
As FIRE explained last time, this bill is patently unconstitutional. S2493, like its predecessor, fails First Amendment analysis in multiple ways:
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.
As we explained before, the proposed legislation is also unwieldy, forcing administrators and student governments to literally drag out maps and scrutinize treaties to determine which countries a student organization can and cannot criticize:
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.
This is a difficult task, so I made a map to help identify which countries the New York State Senate thinks student organizations should and should not be able to criticize:
These are the constitutional infirmities that arise even without getting into whether the state can ban “hate speech,” as this bill purports to do. Again, it cannot:
“[H]ate 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.”
FIRE hopes S2493 will fail in the state assembly just like last year’s bill. As we said last time:
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.
As we have said repeatedly in the past, the remedy for speech one dislikes is more speech. We hope lawmakers in the New York State Assembly agree and realize that pursuing this legislation is incompatible with America’s bedrock principle of free speech.