Free Speech

And Another N.Y. Bill Targeted at "Hate Speech" (and Advocacy of Boycotts of Friendly Countries)

This one focuses on student groups that get funding from public colleges, but it's an unconstitutional viewpoint-based restriction.

|The Volokh Conspiracy |

The bill, S.5285, was filed in May 2019 by state senator Robert G. Ortt, but was resubmitted in January 2020 to the Senate committee on higher education:

[a.] The state university trustees[, city university trustees, and community college trustees] shall adopt rules that any student group or student organization that receives funding from the state university of New York 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.

[b.] … "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 [including corporations and other nongovernmental entities] abstaining from commercial, social or political relations, with any allied nation, or companies based in an allied nation [defined to include NATO members, SEATO members, Rio Treaty members minus Venezuela, Ireland, Israel, Japan, and South Korea] 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.

But when student groups or organizations get generally available funding from public universities, the university must distribute this money in a viewpoint-neutral way, see Rosenberger v. Rector (1995) and Christian Legal Society v. Martinez (2010). That means that the government can't exclude speech that "encourages … discrimination, intolerance, hate speech or boycotts." (Discrimination against allegedly bigoted speech is of course viewpoint discrimination, see Matal v. Tam (2017).)

A rule that government funds can't be used by a group to actually discriminate, or to actually refuse to deal with particular firms, would be constitutional (see this post), because it would be a restriction on conduct (discriminatory refusals to deal) and not speech. But restricting promoting or encouraging discrimination and boycotts is restricting speech based on viewpoint.

UPDATE: See this map by Adam Steinbaugh (FIRE) if you're curious just which countries would and wouldn't be covered by the boycott provision.

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  1. Isn’t there’s a difference between boycotting a product and boycotting a person? (reminder, Israel is not a person)

    I understand it should be illegal to boycott someone based only on his/her nationality, but isn’t that a separate concern from where a particular product was made?

    1. Blabber away with your speech. Just don’t actually boycott.

      It’s ironic the left is trying to argue speech is inextricably intertwined with action in a boycott, and therefore boycots can ot be regulated, when they’ve spent a great deal of energy in recent years claiming speech is action in certain cases, and therefore controllable by government.

      It’s almost as if they pick and choose their philosophical values based on the outcome they desire.

      And good on this blog for defending the speech of boycotts, as a demonstration of principle over picking your philosophy to get at an endpoint. Some detractors lose sight of this and can use a refreshing.

    2. Isn’t there’s a difference between boycotting a product and boycotting a person? (reminder, Israel is not a person)

      Are you saying that Israel is a product? And isn’t a country a collection of people?

  2. Is voting conduct or speech?

  3. Who determines what is hate speech?

    1. Your betters, peasant.

      1. Your betters, peasant clinger.

    2. I do. It means speech that I hate.

  4. the university must distribute this money in a viewpoint-neutral way

    Universities don’t distribute money in a viewpoint-neutral way. They usually delegate such authority to the student government. The student government then engages in viewpoint discrimination and no one can effectively challenge it.

    1. Of course it can be challenged. Delegating the authority does not remove the need to be viewpoint-neutral.

  5. “Ally” is defined to include Ireland? Are you kidding? In what possible way is Ireland, which has made a big of its neutrality, an ally? And if Ireland is, why not Switzerland? (I’m sure it has nothing to do with the comparative strength of the Irish-American and Swiss-American voting blocs in New York.)

    And including SEATO members is also nuts. First of all, SEATO no longer exists. Some of its former members (Australia, New Zealand, Philippines) are bound to the U.S. by bilateral defense treaties, and I guess we kinda like Thailand, but Pakistan? Give me a break.

    I will also question the inclusion of Israel. I know we like to talk about Israel as an ally, but Israel isn’t bound to the United States by any kind of mutual obligation. As far as I can tell, it was included on the list for the same reason Ireland was: because we (and a substantial number of New York voters) like it. (I understand that we have unilaterally declared Israel to be something called a “major non-NATO ally,” but if that designation were significant, the bill ought also to have included Egypt, Jordan, Bahrain, Kuwait, Morocco, Afghanistan, and Tunisia.)

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