MEMORANDUM DECISION AND ORDER I. INTRODUCTION This case uniquely illuminates the delicate balance between freedom of speech and student protest on college campuses, as well as the effect of political polarization on this balance. As Justice Louis Brandeis wrote nearly a century ago: Those who won our independence believed that the final end of the state was to make men free to develop their faculties…They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth[.] Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). A few months before the events in this case, Defendant Harvey Stenger as President of State University of New York at Binghamton (“SUNY-Binghamton”) issued a statement titled “Freedom of speech is fundamental to our mission,” which stated: The University deplores all acts of racism and any action that limits the expression of ideas. Freedom of speech is fundamental to the core mission of the University; academic inquiry and the exchange of ideas rest on the principle that all have a right to express their beliefs. We strongly condemn any acts that impede the expression of those beliefs and caution anyone who attempts to inhibit another’s free speech. We will protect, support and encourage the right of every individual to express concerns freely and to engage in peaceful protest. Our campus is resolute in its support for those of any race, faith, gender, sexual orientation, background or identity. Harvey G. Stenger, University Statement, Freedom of speech is fundamental to our mission, BINGHAMTON UNIVERSITY (May 8, 2019), https://www.binghamton.edu/president/statements.html (emphasis in original). In contrast with this strong declaration about freedom of speech, Plaintiffs accuse SUNY-Binghamton of stifling speech and contributing to political polarization while merely paying lip service to the First Amendment, and violating its own core mission. Plaintiffs Young America’s Foundation (“YAF”), Binghamton University College Republicans, and Jon Lizak bring this action against defendants Harvey Stenger, Brian Rose, John Pelletier, College Progressives, Progressive Leaders of Tomorrow (“PLOT”), and the Student Association of Binghamton University (“Student Association”) under the First Amendment, Fourteenth Amendment, and 42 U.S.C. §§1985(3), 1986. Dkt. No. 1 (“Complaint”). Presently before the Court is Stenger’s, Rose’s, and Pelletier’s (collectively “State Defendants”) motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim for which relief can be granted. Dkt. Nos. 32 (“Motion to Dismiss”); 32-2 (“State Defendants’ Memorandum of Law”); 40 (“Opposition”); and 41 (“Reply”). For the reasons that follow, State Defendants’ motion is granted in part and denied in part. II. BACKGROUND A. Factual Allegations At the motion to dismiss stage, the Court “must accept as true all of the factual allegations contained in the complaint.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n.1 (2002) (emphasis added). Thus, all of the following eight sections containing factual allegations are assumed to be true. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015). 1. The Parties YAF is a nonprofit organization whose mission is to educate the public on the ideas of individual freedom, a strong national defense, free enterprise, and traditional values. Compl. 10. YAF partners with like-minded student organizations on university campuses to, among other things, co-host speakers. Id. 11. Plaintiff Binghamton University College Republicans (“College Republicans”) is an unincorporated association of SUNY-Binghamton students. Id. 12. College Republicans regularly engage in expressive, political activities on campus. Id. 44. Plaintiff Jon Lizak is a full-time student at SUNY-Binghamton, and the president of College Republicans. Id. 16. Defendant Stenger is the president of SUNY-Binghamton. Id. 18. As President, Stenger is responsible for adopting, approving, creating, and enforcing SUNY’s Board of Trustees’ and SUNY-Binghamton’s policies, rules, and regulations regarding student and student group speech activities on the SUNY-Binghamton campus. Id. 19. Defendant Rose is the vice president for student affairs of SUNY-Binghamton. Id. 26. As vice president for student affairs, Rose is responsible for adopting, approving, creating, and enforcing the policies, rules, and regulations regarding student and student group speech activities on the SUNY-Binghamton campus. Id. 27. Defendant Pelletier is the Chief of the New York State University Police Department at Binghamton (“UPD”). Id.
19, 30. As Chief of UPD, Pelletier is responsible for enforcing the policies, rules, and regulations regarding student and student group speech activities on the SUNY-Binghamton campus. Id. 31. Defendant College Progressives is an unincorporated association of SUNY-Binghamton students. Id. 33. Defendant PLOT is a non-student group based in Binghamton, New York. Id. 35. PLOT is a collective of advocates who organize around issues of race, class, gender, and economics, and who sometimes work in concert with College Progressives. Id. 36. Defendant Student Association is a non-profit legal entity that has its offices within the University Union on SUNY-Binghamton’s campus. Id. 39. The Student Association describes itself as “not only a forum for student activism, but the primary financial system which hundreds of clubs and student organizations receive their funding and legal protection through.” Id. 2. Speech Suppression Policy Accepting the allegations in the Complaint, SUNY-Binghamton has an unwritten policy that it uses to censor, restrict, and inhibit unpopular student speech (the “Speech Suppression Policy”). Id. 22. The Speech Suppression Policy has been enacted, created, and put in place by Stenger as a policy maker. Id. 23. The Speech Suppression Policy authorizes SUNY-Binghamton officials, including Stenger, Rose, and Pelletier, to prohibit, chill, oppose, and shut down speech with which they, or other students and faculty, disagree. Id. 24. 3. November 14, 2019 Tabling Event On Thursday, November 14, 2019, College Republicans organized a tabling event in a high-traffic area of SUNY-Binghamton’s campus known as “the Spine.” Id. 47. College Republicans did not obtain a permit from the Student Association to table on this date. Id. 48. The tabling event promoted an upcoming lecture by renowned economist and presidential advisor Dr. Arthur Laffer titled “Trump, Tariffs, and Trade Wars” that College Republicans were co-hosting with YAF on Monday, November 18, 2019 (“Laffer Event”). Id. 49. After nearly three hours without incident, at approximately 1:30 p.m., a group of College Progressives confronted College Republicans over their tabling content. Id.
