We have been discussing the arrest of people in other countries for participating in protests to boycott Israel and other measures. These actions raise serious free speech issues. Some states have created laws barring contracts with companies that join the boycott of Israel. Now, a controversial measure has passed the New York Senate that bars the funding of any student groups that encourage boycotts of Israel and other allies as well as those groups involved in “hate speech” and “intolerance.” However, the bill introduced by New York state Senator Jack M. Martins (R-Nassau County) is so ambiguously worded as to defy definition of the underlying violations — a critical flaw under first amendment analysis. However, over the objections of various groups, the bill has garnered growing support among politicians.

The bill bars 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.” So, if a group is deemed as encouraging intolerance, it is enough to violate the law. The result is an enormous chilling effect as schools seek to avoid violations. Moreover, with the rise of the ill-defined “micro aggression” claims, the definition of what constitutes “intolerance” is difficult to discern. Finally, there are already controversies over the unequal treatment of some speech by protesters on and off campus.

The proposed law states 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 further 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.

In the meantime, New York Governor Andrew Cuomo recently issued an executive order creating a statewide blacklist prohibiting funding to organizations that “promote others” to engage in a boycott of Israel.

So student groups that generally support boycotts of Israel or Japan (over things like whaling) would now be barred from funding. It is a clear return of content-based regulation of speech. Rather than simply allow the different viewpoints to be heard on our campuses, these politicians seek to sanction any groups that merely agree with the need for a boycott – a view shared by a wide array of academic, public interest, and international organizations. I am not arguing in favor of such views but our universities and colleges must remain forums for free speech — places where opposing views can be heard and considered.

This bill is so vague and ill-defined that it would allow for the sanctioning of a wide array of groups that are deemed intolerant or hostile to various groups, religions, and countries. It defies any cognizable limits to foster free speech on our campuses. Faced with such ambiguity, school administrators are likely to avoid any risk when presented with objections that a group is intolerant or violative under the law.

What do you think?

Here is the bill: S8017