Contributor, The Volokh Conspiracy

Earlier this month, the New York Senate passed a bill (S8017), co-sponsored by state senators Jack Martins and Todd Kaminsky, that would require New York public college and universities to

adopt rules that any student group … that receives funding from the [university] 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 [defined to include a long list of American allies], 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.

But the First Amendment forbids the campus rules that the bill would require. When the government funds student groups, it must do so in a viewpoint-neutral manner. See Rosenberger v. Rector (1994); Bd. of Regents v. Southworth (2000); Christian Legal Society v. Martinez (2010). “In a series of decisions, [the Supreme] Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school-sponsored forums because of the groups’ viewpoints.” And these “forums” include funding programs — as the Christian Legal Society majority noted, “The fact that a university ‘expends funds to encourage a diversity of views from private speakers,’ this Court has held, does not justify it in ‘discriminat[ing] based on the viewpoint of private persons whose speech it facilitates.'”

The Court in Christian Legal Society split on whether this no-viewpoint-discrimination First Amendment rule bans policies that restrict a certain kind of conduct (student groups’ exclusion of students). All nine Justices there agreed that the First Amendment bans policies that restrict speech of certain viewpoints.

Yet the law demands that universities do precisely what the First Amendment forbids — engage in viewpoint discrimination. A ban on speech that “promotes” or “encourages” “discrimination, intolerance … or boycotts” would be viewpoint-based: pro-discrimination, pro-intolerance and pro-boycott speech would be banned, while anti-discrimination, anti-intolerance and anti-boycott speech would be allowed.

The bill doesn’t define “hate speech” (a lack of definition that would itself pose First Amendment vagueness programs). But it seems very likely that whatever definition is ultimately applied would be viewpoint-based — “hate speech” generally refers to the expression of certain views that are seen as “hateful.” (See, e.g., R.A.V. v. City of St. Paul [1992].)

Statements from the bill’s backers, Sen. Martins and Sen. Kaminsky, focused on the law as a way of preventing anti-Semitic speech and anti-Israel speech. That itself is bad enough: anti-Israel viewpoints are fully protected by the First Amendment, as are anti-Semitic viewpoints.

But the bill would go far beyond that. It would require that student groups lose funding if they

  1. encourage a return to the exclusion of women from combat (or from draft registration), since that would be “encourag[ing] … discrimination … based on … gender”;
  2. invite speakers who argue in favor of not admitting more Muslim refugees, since that would be “directly or indirectly promot[ing] … discrimination … against a person or group based on … religion”;
  3. speak out in favor of Donald Trump, given his statements related to religious profiling of Muslims and possible exclusion of some would-be immigrants because they are Muslim;
  4. sharply condemn Scientology and Scientologist leaders, because that might qualify as “hate speech” or “encourag[ing]” “intolerance” “against a person or group based on … religion”;
  5. sharply condemn extremist Islam, because that too might qualify as “hate speech” or “encourag[ing]” “intolerance” “against a person or group based on … religion” (even when the religion being condemned is a particular sect of Islam, rather than Islam generally);
  6. sharply condemn traditionalist Christianity;
  7. advocate Marxism, which “directly or indirectly promotes” or “encourages” “discrimination” or “intolerance” “against a person or group based on … class”;
  8. advocate much higher taxes on the 1%, given that such taxes involve “discrimination” “based on … class”;
  9. support race-based affirmative action, given that such programs involve “discrimination” (even discrimination that the Court has concluded is constitutional) “based on race.”

Of course, universities might find some way of exempting some such speech that they like (e.g., advocacy of race-based affirmative action, support of Marxism or progressive class-based taxation, sharp condemnation of traditionalist Christianity, etc.), by denying that such speech promotes “discrimination” based on race, religion and class. Yet that would just mean that the universities would be engaging in still more unconstitutional viewpoint discrimination.

So a clear violation of the First Amendment — though, as with many violations of the First Amendment, seemingly a popular one. I just hope New York Assembly members understand more (or care more) about First Amendment law than the New York Senators do.

UPDATE: Some commenters quickly condemned this as the work of “liberals.” But, for whatever it’s worth, the supporters are a Republican and a Democrat, and the New York Senate passed this with 31 Republican votes and 17 Democrat votes. The 14 nay votes were all Democrats, and one Democrat was absent, so the bill got 31-0 support from the Republicans and 17-14-1 support from the Democrats.