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New York Bill Would Bar Funding to Student Organizations Involved in āHate Speech,ā āIntolerance,ā or Encouraging Boycotts of Israel and Other Nations
On June 6, New York state Senator Jack M. Martins (R-Nassau County) introduced .
[Update (June 16, 2016): The New York State Senate yesterday passed Senator Martins' bill. It has now been referred to the Committee on Higher Education in the New York State Assembly. FIREwill continue to monitor the progress of this patently unconstitutional abdication of students' First Amendment rights.]
The bill would bar state universities, city universities, and community colleges from funding any student organization that āpromotes, encourages, or permitsā boycotts against certain nations or permits āintoleranceā or āhate speech.ā 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 Martinsā 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 Yorkās state senate threatened to cut millions of dollars in funding to the City University of New York (CUNY) over concerns about āanti-Semiticā speech. Meanwhile 35 members of the New York State Assembly signed a letter calling on university officials to suspend chapters of FIREfor Justice in Palestine, a student organization critical of Israel.
Last week, New York Governor Andrew Cuomo issued an creating a statewide blacklist prohibiting funding to organizations that āpromote othersā to engage in a boycott of Israelāan order vague enough that it may well apply to student organizations.
Senator Martinsā bill, introduced the day after Governor Cuomoās executive order and containing language similar to that order, , 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.
[...]
āBoycottā 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 āallied nationā as including any āmemberā 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 Southānot NorthāKorea.)
The billās 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 āallied nationsā), but not those that encourage it. As the Supreme Court has made plainly clear, is not permitted at public universities and colleges. In fact, that, āWhen 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.ā
Worse, the definition of āboycottā is so vague that it would prohibit student organizations from calling on āany personāāincluding the President of the United States and other elected officialsāto abstain from āpolitical relationsā 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 .
The bill is also viewpoint-discriminatory in that it prohibits boycotts of some states, but not others. Itās 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 , 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 allyāwhich it wouldnāt have to do if membership in NATOās Partnership for Peace were sufficient to count as an āally.ā
- 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 to the Rio Treaty, but it was during the Cold War.
- Does the restriction on boycotting apply to any state which signed the , but later withdrew, like ? 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 (also known as the āRio Treatyā), except Venezuela. What about Mexico, which the treaty in 2002? Or Ecuador, which it in 2014? Perhaps Mexico and Ecuador are included, as Venezuela also the treaty, but is explicitly excluded from this billās 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 resolutionāif 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 billās other provisions, meanwhile, are so subjective that they canāt be objectively defined. The bill would bar funding for any student group that ādirectly or indirectly promotes, encourages, or permits [...] intolerance [or] hate speech.ā
First, āhate speechā is . Definitions of what might constitute āhate speechā vary widely, almost always falling upon a subjective definition of what constitutes offensive speechāwhich is by the First Amendment. This bill doesnāt even bother to attempt to define āhate speech.ā
Second, even if āhate speechā were capable of objective definition, the bill could be read to require student organizations to actively prevent āhate speechā and āintolerance,ā lest they be be seen to āpermitā such speech. Didnāt 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 boycottāa propositionāit cannot punish students for taking a position and voicing it.
While FIREtakes no position on the Israeli-Palestinian conflict 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, FIREand others will continue to oppose it.
[Update: I've edited the map to reflect that Greenland is a territory of Denmark and French Guiana is a region of France.]
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