N.Y. Senate passes bill banning funding for university student groups that “encourage” “hate speech”

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

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