A NY Senator’s Silence

It wasn’t long after my buddy was elected to office that we had a beer and talked about what was happening in Albany, or as I put it, “why are they (note that I left him out, as I didn’t want to be offensive) totally nuts?”  He started to give me a party-line answer, because the first thing you learn when you get elected is which side your bread is buttered on, but then, as I looked at him with those eyes that said, “are you really gonna try to feed your old pal this line of bullshit,” changed his tune.

They don’t know and they don’t care.

Huh? What don’t they know? Why don’t they care? “The Constitution,” he replied.  This conversation happened when beers were a buck, but I’ve never forgotten it. There was much more to it, but this isn’t a post about my epiphany, but about New York Senator Jack Martins (R-Nassau County), who is backing up Governor Andy’s effort to silence the dumbasses who hate Israel.  And, as long as Martins is at it, get rid of whatever other speech he doesn’t like.

Adam Steinbaugh at FIRE gives the rundown of Martins’ really bright idea.

On June 6, New York state Senator Jack M. Martins (R-Nassau County) introduced Senate Bill S8017. The bill would bar 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.”

Moar detail? Well. Okay then.

Senator Martins’ bill, introduced the day after Governor Cuomo’s executive order and containing language similar to that order, provides, 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.

In the grand scheme of flagrantly and facially unconstitutional laws, this one is an easy target. It’s hardly as subtle as the threats of financial sanctions against schools in states that don’t substitute transgender discrimination for sex discrimination,  And it plays well to Martins’ (and Cuomo’s) constituency in New York, where the erstwhile progressive cause of the Palestinians takes a distant backseat to support for Israel, even if New York is otherwise deep into its other planks.

What’s curious is that while Martins remembered to throw in “hate speech,” he neglected to include hate speech directed against gender identity or sexual preference.  He did include “class,” which, contrary to what his constituents are likely to assume, has nothing to do with shopping at K-Mart versus the Miracle Mile.

But hate speech? Who but some sick sociopath wouldn’t want to end hate speech? Back to Adam:

First, “hate speech” is not an exception to the protections offered by the First Amendment. Definitions of what might constitute “hate speech” vary widely, almost always falling upon a subjective definition of what constitutes offensive speech—which is protected by the First Amendment. This bill doesn’t even bother to attempt to define “hate speech.”

Second, even if “hate speech” were capable of objective definition, the bill could be read to require student organizations to actively prevent “hate speech” and “intolerance,” lest they be be seen to “permit” such speech. Didn’t 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 boycott—a highly dubious proposition—it cannot punish students for taking a position and voicing it.

There are two ways to approach what people refer to as “hate speech.” An objective approach, which would mean there would be a list of words that we could check (and recheck, since new words could be added at any time) to see whether a word we want to utter has the official seal of disapproval.  The problem with this approach is that there is no entity, no Censorship Czar, to create and maintain the list of disapproved words. Of course, should such an entity be created, the competition for the position will be stunning.

The alternative approach is to define hate speech by how it makes its listeners or readers feel. Sometimes this is relatively easy, as when someone calls you “unbearably ugly,” or announces that your mother wears army boots. Other times, not so much, as when you’re called a “Bolshevik kike” and “scheming little Jew,” and mention it on the twitters because it’s funny and not because you want to be a victim at all.

The problem with the second approach is that along the spectrum of words, phrases and ideas that could hurt people’s feelings, whether deeply or just the tiniest twinge of hurt, like a machete, one can never be sure.  Even the most benign phrases, even words that seem happy and empowering, could hurt someone and make them sad.

But the problem as applied to Jack Martins’ law is that it would just as soon stifle expression condemning the Holocaust as the West Bank.  And you know what? We want to be able to discriminate, and to tell others of our reasons for discriminating, such as why we hate White Supremacists, or why Black Lives Matter is better than Blue Lives Matter.

And, of course, we’re definitely allowed to do so, because we have this thing called the Constitution, which has this thing called the First Amendment, which includes this thing called Free Speech, which means that proposed bills like Senator Jack Martins’ are wildly, off-the-charts, flagrantly unconstitutional.  Not that anyone in Albany gives a damn.

8 thoughts on “A NY Senator’s Silence

    1. SHG Post author

      There is no political perspective that owns principle. Or doesn’t dispense with principle at its convenience.

      1. Patrick Maupin

        Sure. But the idea that disfavored groups wouldn’t receive less money than favored groups is part and parcel of the fantasy that a working government could have zero money to dole out to favored groups.

  1. mb

    I could sympathize with the desire to rein in the assholes who are shitting on college kids with this hate speech nonsense, but I can’t figure out why the answer should be to have a superstructure of super assholes take on that job. Who assholes the assholes?

  2. Robert Beckman

    A reminder for the Governor that California already tried this, and the oral argument in Entertainment Merchants Association v Brown (which almost was v Schwarzenegger- making it almost have the best case name ever) explains this (quote edited for brevity).

    Justice Ginsberg: you’ve been asked about the vagueness of this and the problem … To know what’s good and bad. … Does California have any kind of an advisory opinion … This [is] deviant violence, and this one is just violence but not deviant?

    Mr Morazzini: Not that I’m aware of, Justice Ginsburg.

    Justice Scalia: You should consider creating such a one. You might call it the California Office of Censorship

    (Favorite quote from Scalia, right behind my #2 favorite, said just a few moments later in the same case)

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