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Gov. Cuomo Signs Law Banning Sale of Hate Symbols, Confederate Flag, Nazi Swastika

Michael W. Chapman | December 17, 2020 | 10:56am EST
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New York Gov. Andrew Cuomo (D) (Getty Images)
New York Gov. Andrew Cuomo (D) (Getty Images)

New York Gov. Andrew Cuomo (D) signed into law on Wednesday legislation that bans the sale or display of "symbols of hate," such as the Confederate flag or the Nazi swastika, on public property in New York, a law that is likely to be challenged as a violation of the First Amendment and free speech.

“This country faces a pervasive, growing attitude of intolerance and hate -- what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message, as reported by the New York Post

Confederate flag.  (Screenshot, Time)
Confederate flag. (Screenshot, Time)

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols," said the governor.

The actual law says

"1. The state of New York shall not sell or display any symbols of hate or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, museum, or otherwise serves an educational or historical purpose.

"2. For the purposes of this section, the term 'symbols of hate' shall include, but not be limited to, symbols of white supremacy, neo-Nazi ideology or the Battle Flag of the Confederacy."

(Getty Images)
(Getty Images)

The law does not mention left-wing hate symbols, such as Soviet flags, Che Guevara t-shirts, Antifa signs, or Communist China flags. Perhaps they fall under the "not be limited to" category. 

Cuomo further said, “While I fully support the spirit of this legislation, certain technical changes are necessary to balance the State’s interests in preventing the use of hate symbols on state land with free speech protections embodied in the First Amendment of the United States Constitution.” 

The Frist Amendment to the Constitution says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Emphasis added.) 

  (Getty Images)
(Getty Images)

First Amendment scholar and lawyer Floyd Abrams told The Post, “Governor Cuomo is correct that the First Amendment may require changes in the law in light of the First Amendment. A private entity can choose to sell or not sell offensive symbols but when the government bans the sale of offensive, but constitutionally protected symbols, on its property the First Amendment comes into play,” 

Law professor and constitutional scholar Jonathan Turley wrote in his blog, "The test of free speech is to support those with whom you disagree and speech that you oppose. This is one such case. In my view, the Cuomo legislation is a violation of the First Amendment."

He also cited Supreme Court Associate Justice Samuel Alito writing in Matal v. Tam, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate”. United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)."

Antifa activists and the Antifa flag.  (Screenshot, USA Herald)
Antifa activists and the Antifa flag. (Screenshot, USA Herald)

Justice Anthony Kennedy also wrote in the case, “a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.” 

In his closing remarks, Prof. Turley wrote, "I do not know when the Democratic Party became the party for censorship but attacks on free speech are now rallying points on the left. We have been discussing how writerseditorscommentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and his key advisers. The erosion of free speech has been radically accelerated by the Big Tech and social media companies."

"This law in my view is flagrantly unconstitutional and should be immediately challenged in federal court," said Turley. 

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