New York Gov. Andrew Cuomo signed legislation this week that would ban the the sale of Confederate flags and other symbols of “intolerance and hate” on public property and limit the display of such symbols. As a long-standing free speech advocate, you must often defend speech that you find offensive. However, the First Amendment is not designed to protect popular speech. We do not need protection for speech that people support. 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.
We have previously discussed the alarming rollback on free speech rights in the West, particularly in Europe. Indeed, Norway recently criminalized private speech at home deemed hateful or offensive. Indeed, this legislation follows the European view that has destroyed free speech on that continent.
Cuomo wrote that “[b]y 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.”
The question is who will safeguard our free speech rights as politicians listed banned symbols that groups declared offensive.
Notably, Cuomo admitted that “certain technical changes are necessary” to make sure the ban is compliant with the First Amendment. The first “technical change” would be to rescind the law.
Here is the language:
146. PROHIBIT SYMBOLS OF HATE.
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.
…
TAKE ANY MEASURES NECESSARY TO PROHIBIT THE SALE, ON THE GROUNDS OF THE STATE FAIR AND ANY OTHER FAIRS THAT RECEIVE GOVERNMENT FUNDING, OF SYMBOLS OF HATE, AS DEFINED IN SECTION ONE HUNDRED FORTY-SIX OF THE PUBLIC BUILDINGS LAW, OR ANY SIMILAR IMAGE, OR TANGIBLE PERSONAL PROPERTY, INSCRIBED WITH SUCH AN IMAGE, UNLESS THE IMAGE APPEARS IN A BOOK, DIGITAL MEDIUM, OR OTHERWISE SERVES AN EDUCATIONAL OR HISTORICAL PURPOSE.
Notably, the law only allows for the sale or displays if they serve “an educational or historical purpose.” What if they serve social, ideological, political ,or literary purposes? Those are also protected under the First Amendment. Moreover, it allows for the barring of images that are not limited to the broad definition of “symbols of white supremacy, neo-Nazi ideology or the battle flag of the Confederacy.” Rather, it is covers a wide array of undefined “symbols of hate.” Many people differ on what groups or symbols they deem “hateful.” The legislation is an invitation for plunging down the slippery slope of censorship.
In Matal v. Tam the Court ruled against the government’s use of the disparagement clause of the Lanham Act. Justice Samuel Alito wrote:
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).
Justice Anthony Kennedy added the cautionary note that “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.”
The bill was sponsored by Reps. David Carlucci, Leroy Comrie, James Gaughran and Andrew Gounardes
Once again, 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 have been discussing how writers, editors, commentators, 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.
Hatred is in the eyes of the beholder.
I find the Antifa A symbol to be a symbol of hatred–is that included in King Cuomo’s law?
That the idea that opposing fascism ie “antifa(scism)” is equatable with hatred may be true technically as the most like do hate fascism. But suggesting that this merits serious opposition is only conceivable in a person who knows absolutely nothing about the history of the world since 1900. But I love to be proved wrong, could you tell me the titles of ten or so serious non-fiction histories you have read in your life?
I’d be more inclined to tell you the titles if you weren’t fool enough the take Antifa’s claims at face value.
If you actually had read any history, you’d know that nothing resembling inter-war fascism has been since 1945 manifest anywhere outside of a handful of places in the Near East.
I would sincerely beg to differ.
Antifa is fascist.
This should not surprise – the left usually is what it accuses others of.
The left is the party of big corporations today. Of weathly billionaries.
It is the part of the racism.
It is the party of corruption.
Lest we forget Democrats impeached Trump for What ? For asking Ukraine to look into the corruption of the Biden’s.
So seeking the truth about at the very least highly unethical conduct is an impeachable offense ?
“That the idea that opposing fascism ie “antifa(scism)” is equatable with hatred may be true technically as the most like do hate fascism.”
The problem is that antifa is NOT anti-facist, they are actual fascists. Anyone familiar with the actual conduct and values of real fascists – those of Hitler and Mussolini would find them indistinguishable.
Regardless, the issue is not specifically about Antifa – the cancer of intolerance and hatred pervades almost 50% of the country.
The problem with the left, the media, democrats is exemplified by an aphorism of evangelical christians – “Hate the sin, love the sinner”
While fundimentalist chrisitians often fall short of that aspiration – those on the left do not even try.
The left does not attack ideas it thinks are hateful – the left does not address ideas at all. The left attacks People.
That is not “anti-fascism, it is intolerance, and hate – it is fascism.
Hillary Clinton did not say the right had deplorable ideas. It said that the people on the right were deplorable.
The left does not seek to win the war of ideas through argument, persuasion and the merit of its ideas. It seeks to do so by silencing opposition. By deplatforming, by censorship, by demonetizing, by doxing. by depriving people of their livelyhood by attacking – verbally and physically the people with ideas and views they do not like.
If the ideas of the left are superior. If the ideas the left opposes are inferior, make that case by argument, not insult, by open debate, not efforts to silence opponents. by facts, logic, reason, not ad hominem.
“THE TERM ‘SYMBOLS OF HATE'”
This is the horror of non-objective law. “Symbols of hate” cannot be objectively defined. It is arbitrary, capricious — and its interpretation is based solely on a person’s or group’s emotions.
Some feel hatred at the sight of the American flag. Others at the Antifa logo. Some are repulsed at the image of a cross. Others are sickened at the sight of a dollar sign. A gun symbol raises the ire of some educators. There are probably malcontents who detest the symbol of an ice cream cone.
Petty tyrants, like Cuomo, love emotion-driven, open-ended “laws.” Such “laws” give them absolute, unchecked power — and they instill a chronic sense of fear. Fearful people are easy to control.
Actually “hate speech” can be defined, just as “fighting words” can be. And there need not be one strict definition, it may vary just as with fighting words, by jurisdiction.
There is little that is perfectly objective about any law, and serious infractions of laws are decided by juries, who are never even nearly objective. So while perhaps your effort is to be commended, your presmise is broken. The logical approach is that hate speech is protected speech.
“The logical approach is that hate speech is protected speech.”
***
True.
JS: “Actually “hate speech” can be defined . . .”
By all means, then, provide an *objective” definition — one that is *not* dependent on the feelings of an individual or group. It can’t be done because the word “hate” is, by definition, a type of emotion.
Law dependent on a “jurisdiction” is “law” determined by the emotions of a group in a particular area. That is “law” by will of the majority, i.e., mob rule. That is not a government of laws; it is a government of men.
“Actually “hate speech” can be defined, just as “fighting words” can be. And there need not be one strict definition, it may vary just as with fighting words, by jurisdiction.”
Correct – we should have legal anarchy – neither hate speech nor fighting words can be defined. Nor can either be censored by government today. About the only speech that is actually proscribed in the US today is incitement to violence and terroristic threats.
In both instances the threat must be immediate and credible.
“There is little that is perfectly objective about any law,”
That may be true – because laws are created and enforced by humans, but it is not the goal of law, nor is it desireable.
For that reason alone that argument is crap.
Regardless, if the law does not rest on moral standards that the overwhelming majority of us intuitively know, it is unsustainable.
No system of government and law is sustainable if the overwhelming majority of law is not only known to almost all, but respected as correct by almost all. Anything else quite literally requires a police state.
The less objectively correct and clear the law is the less stable the government that attempts to enforce it is.
I would suggest reading the declaration of independence – it is a longs screed AGAINST precisely the legal nonsense you are arguing for.
I agree with you that “hate speech” is protected. but your argument is at odds with your conclusion.
Though the phrase “protected speech” is itself disturbing. There is not a narrow class of speech that is “protected”, there is a very narrow class of speech that can be proscribed
Something many don’t seem to understand about the dems: none of this is for your or my benefit, they aren’t addressing you. It is very specifically for millennial democrats and younger, the DNC considers them to be their guaranteed future safe guard, just as with uneducated immigrants. It is crass beyond belief, and it is transparent as cellophane. You and I are at best irrelevant, at worst, in the way, and they dearly want us out of the way.
It’s one of the real reasons for the shock about the elections – the dems incorrectly assumed that we older people had simply rolled over. They have drunk their own kool-aid in believing people turn invisible after 40 or so or that those people are easily intimidated by petulant children (an honorific that has been extended by at least 10-15 years, if not indefinitely, in biological age for many millennials and following generations). This will not go well for the dems over the coming years, I can tell you that much. They chose the wrong allies, and it’s only a matter of time before they lose control of their own organization completely.
We are in the bizarro 60s: don’t trust anyone UNDER 30. Equity, compassion, intelligence, truly progressive thought – these do not there lie.
So the Democrats’ presumptive attorney general wants to start by burning the Bill of Rights. Is Georgia listening? I guess the Democrats are determined to find out if Chief Justice Roberts has any principles at all.
Maybe a quid pro quo? What if we also outlaw burning the American flag? That would be fair, but I’m not holding my breath on that deal. That’s the insidious problem with speech codes. Nobody really wants them if they can weaponize them.
OOPS. I meant nobody wants speech codes if they CAN’T weaponize them for one side.
Hate symbol my arse. He’s a politburo guy through and through. Let the legal challenges begin.
SCOTUS rules that the constitution is dead so what’s the point? Any government official can make up any laws as they want and there isn’t anything you can do, no where to go. SCOTUS is just another demonrat organization!
It is constantly pointed out that the left and Democrats want to limit freedom of speech along with other freedoms. The left and Democrats reject that characterization but here is another clear example of that desire.
Cuomo like many other Democrat leaders has overstepped the boundaries he creates for others but not for himself.
So it appears we won’t be seeing his face in public anytime aoon. That face is the perfect symbol of hate in 2020
I am no lawyer so can anyone tell me what the time table would potentially be for this to be stricken down? How long will it take for the courts to reverse this?
Jim22:
Filing, injunction, discovery, 12(b)(6) motion. About 180 days in Virginia’s EDVa. In SDNY, about a year.
Thanks.
Such is the state of mind of Democrats like Cuomo. They rape, assault, violate, abuse women in flaglante, with nary a word from his sycophant adoring fans in the news media. Lesson here:
rape women like Bill Cllinton, enjoy being a Governor and then a US President whilst signing ordrs against hate
Only in America
Just as one man’s freedom fighter is another man’s terrorist, so what seems hateful to one person is not to another. The Confederate flag is bound up with the history of the South, so it is reviled by some but not by others. There is no good definition of ‘white supremacy,’ and I doubt Cuomo or the New York legislators have more than a vague idea of what constitutes neo-Nazi ideology. This is politically correct legislation, and it is as irrational as political correctness itself.
White privilege and white fragility are both myths, but the fascists built their movements on myths. BLM is an activist political organization, and activism was at the core of organizations like the SA and the Black Shirts. Antifa is not unlike the fascist and Nazi gangs who fought the communists and socialists for control of the streets in Europe during the 1920s and 1930s. Fascism had a liturgy (kneeling comes to mind), martyrs (like Floyd), and slogans (like silence is violence), and its adherents had a strong desire to belong to a group. Neither racism nor anti-Semitism were characteristic of most fascist movements, but most did seek to control the thinking and actions of others. One means to doing so was to destroy existing symbols and institutions and replace them with ideologically acceptable symbols and institutions.
Fascism was a political movement, but it insinuated itself through a country’s culture, and its ideology was parasitical on a country’s social values.
It would seem that we are looking in the wrong places for the fascists today. Groups like the Proud Boys are reactionary, not ideological, and they pose much less of a threat than groups and individuals who want to control the way that we think, to recast our institutions in their image, and to mandate how to live our lives.
Perhaps it is time to read a little less propaganda and a little more history?
Well written.
The New York Communist Manifesto, and twisted Defunct Democrat Marxist Socialism Comrade Coumo taking a page out of Communist Marxist, Nazi, history in trying to KILL FREE SPEECH. Comrade Coumo now trying to invoke what Hitlers SS did in World War II; Nice try Comrade Coumo. You already contribute and shown ever American that YOU are a Democrat Communist Marxist for the New World Order Fascist Marxist Globalist Cause.
dont compare them to the SS. they had awesome uniforms. Cumo has no sense of style like that
I dig the old Khmer Rouge too– black pajamas with a checkered red scarf. I dig it!
Saloth Sar
The problem with laws like this is that some pandering governor like Cuomo will single out white supremacy instead of racial supremacy. Doing so, is racist by exclusion and inclusion.
Laws like this create the monsters they’re trying to kill. I want to know where and who the creeps are. Laws like this puts them in the dark to grow like a fungus.
Yes, the law will likely be struck down.
The real problem is that Cuomo, his ilk and way to much of the country think this is a good idea.
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
― John Stuart Mill, On Liberty
Yes, the law will likely be struck down.
You fancy. Our judges aren’t worth a pitcher of warm spit.
Just more of the overreaching dictatorship so prevalent in small minded people. Expect more of this Nazi behavior if Biden and Kankneelforya gets in the Oval office.
I am confident this is unconstitutional. But once again the real problem is not the law itself but WHO GETS TO DECIDE? What entity will pass judgement on ” Hateful symbols”? I have heard many times a red hat qualifies. Is this really the road we want to travel on? Many of our fathers and grandfathers gave their lives to protect our freedoms. Maybe all you left wing babies should just toughen up a little !!!
Well, of course. The problem with this law is so obvious it seems almost jejune to point it out explicitly. We live at a time when our opponents are so obtuse they don’t notice the problem or they do notice the problem and do not care. This will not end well.
I guess we won’t be able to put a number sticker with Trump’s picture on it on our cars.
Any law, including the supreme law of the land – the U.S. Constitution – is meaningless without risk of penalty for law breakers and insufficient enforcement. The U.S. Constitution – a wartime governing charter – was designed to RESTRAIN the political branches of government.
Maybe a fatal flaw in the American system is that the Judicial Branch, by itself, simply can’t police unconstitutional-authoritarianism by the political branches – so there is no “deterrent effect” to constitutional law breakers.
Some possible remedies: disbar government attorneys that violate Judicial Branch rulings. Officials that break the Supreme Court’s ruling on constitutionality must reimburse the taxpayers for law breaking. Make the DOJ’s Civil Rights Division [enforcer of constitutional statutes] a separate agency under the Judicial Branch. The current unconstitutional system is completely broken.
I guess my car with the bumper sticker supporting “Black Lives Matter” is illegal too? Symbol of Black Supremacy. Oh, wait, that’s OK!! Only whites are targeted. Whew. Can I wear my Washington Redskins shirt in New York without being arrested? Actually, since every sane person hates the New York Yankees, we won’t be seeing many of those offensive hats either. Good thing.
This will challenged in court and Cuomo will lose. The bigger question for me is what happens when other not named groups get challenged for their views. What is hate symbols and where does it end? Can we ban the selling of crosses or how about the American flag because some groups find what it stands for racist and imperial?
What is next? book burning?
If Democrats want to stay in power, the party should support the entire U.S. Constitution – including the 1st and 2nd Amendments. Today neither party supports the entire U.S. Constitution.
Generally speaking, Republicans support less than 5 amendments and Democrats support about 25 amendments. It’s extremely easy for Democrats to support the entire U.S. Constitution – which would win many independents, conservatives and swing-voters.
Ashcroft’s Zersetzung that has got to be the DUMBEST thing I have ever wasted time reading.
🙂 🙂 Is that even true?? .. Unbelievable!! .. And we thought America was the beacon of Freedom and Liberty.. It is so absurd that it is plainly Unconstitutional.. God Save America.. It is going to drain my beloved America..