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.
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.”
We have nothing to fear from the viewing of abhorrent symbols.
Sticks and stones may break your bones but names/symbols can never hurt you.
We have everything to fear from power-drunk politicians acting under the guise of seeking to safeguard our feelings. These morally abhorrent megalomaniacs are more than capable of destroying our liberties and livelihoods while accumulating more and more power for themselves/government.
There is really not much to discuss here. The statute is unconstitutional and will be tossed as soon as someone gets around to filing suit. Indeed, I suspect that a review of the legislative timeline will reveal a memo from legislative counsel somewhere advising that the law likely violates the First Amendment. The enactment of laws which a legislative body knows, or ought to know, are invalid, happens with greater frequency than is publicly acknowledged. They feed the voting public a cheap emotional meal and politicians can always blame the courts when they receive the inevitable judicial slap in the face.
Well Mike it’s not inevitable if it involves alleged racism. The days of the ACLU representing some klucker lighting a cross in the backyard of the trailer park are over. The days of judges being blind in that respect where civil liberties are concerned are way, way over too.
Sal Sar
Sure. Why not nullify the Constitution and Bill of Rights. The judicial branch will approve it. The entire American welfare state is unconstitutional, as are elections not held in a polling place by physical ballot and elections not held on Tuesday, a 24-hour period, and the judicial branch approved all of that. The Constitution is now a single sentence which reads, “Do whatever you like, comrades.”
Ban statues of these people:. Washington, had slaves; lincoln, fought the south; FDR, spoke new yorkie; Trump, peddle to the metal.
why is turley reprising this old article?
https://twitter.com/JonathanTurley/status/1339645834225471489?s=20
wealth tax is a great idea if it targets the 700 billionaires — and doesn’t drag in countless millions of other people who are not even close to the top of the pile. the old estate tax was far too comprehensive in that way. the evils are coming not from the 1% but from the 1% of the 1%. Kick them in the crotch successfully, and then the government will have some real power. Instead of just being their plaything.
but one state doing it, will just cause them to divest. you have to have the whole US take a bite at that apple for it to have a real effect. and it’s got to be a very hard bite because the billionaires will not like it and we can see how they cancel whatever interferes with their plans!
Saloth Sar
Wealth taxes are stupid ideas.
If NY wishes to destroy its economy – it can go forward with idiotic ideas such as these.
Ha ha ha. The Democrats will put in exemptions which leave their donors harmless. They’re after the petty rich, who commonly vote Republican.
Hate speech:. New Yorkies are dumb!
When forces directed by foreign governments burned the White House [War of 1812] or bombed Pearl Harbor [WW II] we knew what to do when taking a kinetic blow.
We don’t seem to know how to respond to forces directed by foreign governments mounting several digital blows that undermine the entire basis of our government–honest elections. In fact, a blow of this type is more dangerous than losing the White House building or sinking the battleships of the Pacific Fleet.
In the first instance, the kinetic attacks, the President knew he had to act and did it. There are powers left to the President to allow executive action and those powers are in poor hands when deferred to the courts or the Congress.
There is now an enormous pile of evidence, digital and eyewitness, and official records that prove what is essentially a coup supported by the Deep State and backed by foreign powers hostile to this country.
The claim from Democrats, some Republicans, and all of the media is that we must simply surrender and accept the attack. China, Russia, and Iran get more effective votes choosing our President than American voters do.
I have posted early on in these threads that this problem is probably too big for the courts and so it has proven to be thus far. Congress is, well, it is Congress and enough said about that. Reports are that at least some of those members have been corrupted by foreign influence or Big Tech or both.
The President should use the substantial reserve powers that lay with the executive to set aside or block the votes corrupted by foreign attacks and internal sabotage.
I suspect that only the President and Vice President, with the support of loyal Americans, can stop this attempted coup.
It must be stopped or we probably have seen the end of honest elections and the end of the American experiment in government ‘of the people, by the people, and for the people.”
There isn’t an enormous pile of evidence. There’s an enormous pile of hearsay and false claims and a handful of voter fraud.
“There isn’t an enormous pile of evidence.”
Actually there is. Further the lawlessness itself is enormous.
That is actually the problem. The lawlessness is so pervasive that the remedy is more than the courts can cope with.
Better to allow 10,000 fraudulent votes than to get rid of 1000000 legitimate ones.
Hard cases make bad law – and that is what we are seeing.
“There’s an enormous pile of hearsay”
Hearsay is commonly evidence. Regardless the quality of the evidence is 1000 times greater than that of “russian collusion”
“and false claims”
So what would those be ?
Sydney Powell’s claims regarding DVS are pretty extreme. Thus far they have not been proven. But they also have not been disproven.
Equally importantly – though no one has proven that DVS automatically altered thousands of Trump votes to Biden, there has been plenty of proof that DVS allows the relatively easy manual alteration of thousands of votes and provides no meaningful audit trail.
DVS will scan and count the same vote multiple times, it will scan and allow adjudicators to vote blank ballots. It will allow adjudicators to change any vote on any ballot they want and it will not provide an audit trail capable of tracing these changes.
“and a handful of voter fraud.”
For the most part the state has possession of all the evidence and has not allowed access to it.
That is the reason why the vast majority of claims are either statistical or hypothetical – Trump and others have very effectively demonstrated that large scale fraud was possible. They can not prove that large scale fraud occured without discovery.
I would warn you that this is not ending anytime soon. Over time more evidence will emerge. Over Time access to the actual records will expand.
Right now the State of Pennsylvania as an example does not know how many mailin ballot applications it received, how many it sent out, and how many were returned.
Based on the states initial data – something like 700,000 more mailin ballots were received than were mailed to voters.
That number has subsequently declined a bit – but the initial claim was based on PA’s figures. Regardless there is still a several hundred thousand discrepancy between the mailin ballots sent and those counted.
Many of the claims of some of the Trump experts will be whitled away over Time – I beleive that one forensic fraud expert is currently claiming that there are 130,000 illegitimate votes cast in NV. Some people have found instances where some of those illegitimate votes were legitimate – that is to be expected – it is not possible to perfectly verify 130,000 claims in a few weeks.
But it is highly unlikely that the 130,000 number will be reduced to the point it does not matter.
Nor is NV unique
Anonymous: “There isn’t an enormous pile of evidence. There’s an enormous pile of hearsay and false claims and a handful of voter fraud.”
***
The AG and Secretary of State in Michigan entered court to demand that the release of a forensic report on Dominion machines be blocked.
If the machines are as reliable as they claim they should welcome the release of a forensic report. Trying to suppress it almost always points to a consciousness of wrongdoing. They tried to suppress it. The expert analysis revealed that the machines were set to support voter fraud.
You seem to be weak on evidence so you should know that the opinion of an expert once foundation has been established is admissible evidence in every court.
Many of the accusations of fraud come from personal observations by witnesses willing to testify and submit to cross-examination in court. That is evidence in every court.
Hearsay evidence is not automatically untrue. It is generally inadmissible in court but there are well established exceptions to the hearsay rule even there. In administrative law hearings hearsay evidence is sometimes given wider acceptance than in a law court. But it is evidence and calling it ‘hearsay’ is not the same as saying it is false.
I recognize your role, but you are a bit out of your league on this blog.
Yes, if there was no fraud, not malfeasance, no lawlessness – why are democrats working so hard to hide everything ?
Haven’t we been here before with the Collusion delusion nonsense ?
Claiming to be an expert doesn’t make someone an expert.
https://www.9and10news.com/2020/12/15/officials-dispute-findings-in-antrim-county-audit/
His previous report was riddled with errors, and I bet his latest will be as well.
Wait for the hand audit results.
https://www.9and10news.com/2020/12/17/state-conducts-audit-of-antrim-county-presidential-election-results/
Hearsay generally isn’t admissible.
Anonymous: “Claiming to be an expert doesn’t make someone an expert.”
***
No, it doesn’t. That is why foundation is laid and the court accepts one as an expert for the purposes of testimony.
Anonymous: “Hearsay generally isn’t admissible.”
Another non sequitur from you. Hearsay generally isn’t admissible but it sometimes is according to known exceptions and is more often allowed in administrative hearings than law. However, most law enforcement agencies rely heavily on hearsay to commence and pursue investigations that can lead to testimony in court. In that context, hearsay evidence is used far more often than formal courtroom evidence. You labor under the misapprehension that everything must meet the admissibility rules in court to be useful. On a daily basis, almost all of us almost all of the time effectively use information and evidence that does not meet courtroom standards.
You have a peculiarly rigid notion of how the world works. Are you out of college brain washing camp yet?
I beleive he was accepted by the court as an expert – therefore by law he is an expert.
I would expect officials to despute his report – it is not good for them. I would expect that DVS would dispute his report.
I do not doubt there are some errors – the time frame was limited, and his access was limited.
At the same time most of his key claims in his then sealed report were made BEFORE the GA election judge demonstrated them in real time in front of the GA legislature.
Put simply the live demonstration of DVS flaws in GA and the report confirm each other.
Checkmate.
As to the Antrim audit – great – why did it take over a month before Antrim was willing to audit the equipment ?
Separately – at this time who trusts the election officials, they have a vested interest in the outcome.
Bring in third parties.
That is important for another reason specifically related to the forensic report you are pissing on.
The report DOES NOT claim that the DVS equipment altered votes. That was Sydney Powels claim.
This report claims that the DVS equipment sends an extrodinary number of ballots to adjudication – where election officials are able to alter votes.
If you wish to do this right you need an audit that is NOT done by the election officials.
“Hearsay is generally not admissible”.
Not in my experience.
I expect honest elections.
I expect election officials to follow the law – that did not occur.
Further it did not occur in a way we will never be able to trust the results.
The Antrim audit that is being done should be SOP for all computer systems in elections.
It should not be something that we have to go to court over.
The only means that computer systems can be trusted in elections is if they are always going to be audited later.
The same is true of humans and human handling of ballots.
Not only should the DVS machines be audited – but election officials – EVERYWHERE should be audited.
Again as SOP.
The hope and expectation is that nothing is found.
And we can be sure that will be the case
If and only If audits are commonplace.
We do not need to make cheating hard.
We need to make getting caught easy.
And we need this for ALL future elections.
Anonymous: “His previous report was riddled with errors, and I bet his latest will be as well.”
****
That sounds like hearsay and speculation on your part. Not admissible.
well young one thing i can predict is that if the fake election coup is crushed, markets will take a beating, and bitcoin will shoot the moon.
wait, markets are up and bitcoin is shooting the moon.
i guess maybe that means half the country thinks it’s game on for easy money and the other half is betting it aint.
January’s gonna be interesting times
Sal Sar
I am interested in claims that Russia or China influenced our elections.
But I have no interest in seeing our government act to thwart anything that China or Russia might do that we would not be required to thwart if done by John Doe.
There is a real issue with this election – the lawlessness of various state election officials, and the refusal of the courts to remedy that.
It may be impossible to “prove” to those unable to accept that reality does not conform to their ideology. but it is easily possible to demonstrate to most of the electorate that we can not allow this to repeat.
In senate hearings today republicans read the recent statements of numerous prominent democrats raising issues with our elections – often exactly the same issues they are hiding from right now.
Persuading people that this election was corrupt and that we most not repeat it is not hard.
Further the lessons of this election go beyond the outcome.
Democrats as a whole have demonstrated that they are untrustworthy. That they will not follow the law, that the will not abide by any agreements they make. That working together and compromise with them is not possible.
There is serious talk of a Covid bill – Why ? Why would a Biden administration be trusted not to twist whatever is done ?
You want to fixate on foreign actors – note the ties between those actors and the democrats that they have repeatedly LIED about.
Question that is begged by all of this….”When does display of the US Constitution or Declaration of Independence become a banned event because they are considered “Hate Symbols” by some Leftist?”.
I see the LGBTQ Flag, the BLM Flag, the ISIS Flag, and a photo of King Cuomo or Rosie O’Donnell to be symbols of hate…..will they be banned from display?
Again…..the good Professor sees it correctly.
So, my swastika is a symbol of hate, but as a person of Indian descent, it is a spiritual symbol of good luck to me. Easy example of why this is asinine and unconstitutional.
American Indians also used a swastika and I think some American Indian units in the U.S Army had swastika army patches for a little while–not sure about the last, though.
Here it is, 45 Infantry Division had Swastika army patches because of American Indian heritage.
http://45thdivisionmuseum.com/index.php/history/from-swastika-to-thunderbird/
Buddhists use the swastika too. Often seen on the forehead or sternum chakras of Shakyamuni
Sal Sar
don’t tell anybody young, but many buildings erected in the heyday of American construction from 1900-1930 or so, have border designs of Greek key style “meander” incorporating the swastika.
I can think of several public buildings, which I will not name for the sake of them not being torn down or defaced, which have it
In fact, there are various monuments and public buildings in DC which have it.
Well, here is one that’s out of the bag in Chicago, for years now, and apparently nobody cares so i will share it
“Columbia College’s Congress-Wabash Building (33 E. Congress Building), designed by Alfred S. Alschuler (who turns up later in this article), not only has a stylized swastika pattern but a set of terra-cotta Roman fasces for good measure.”
http://chicagosteppes.mrdankelly.com/?p=1122
Saloth Sar
Shimba is just our usual troll posing as East Indian. Readers have never, ever seen Shimba’s name before.
How does your response – even if true relate to her comment ?
I do not care if Shimba is a “fake”.
The fact is that swastika’s long predate Nazi’s, and are legitimate parts of many religious traditions.
Will they ban Che Guevara t-shirts? How about the hammer and sickle? Is burning the American flag hateful?
Pretty vague…let me guess who gets to decide which symbols are hateful…Andy the Knuckle-Dragger? Thought so. What can possibly go wrong? Well…say goodbye to your 1A rights.
Perhaps Cuomo may want to read the case ‘Village of Skokie V. Nationalist Party of America.’ Of course that was back in the day when the ACLU actually defended the 1st Amendment.
even then Cindy, it was just a ruse. the goal was to unbalance the majority, all along
Sal Sar
This is just the foundation being laid for complete control of information and people later on. Remember “They” will deem what should be considered hate resulting in what we hear/see and don’t hear/see. In the mean time Let’s not forget how the left has been vilifying Trump and his supporters for the past four years and referring to “Make America Great Again” hats, shirts etc as symbols of hate. They have been compared to the Nazi symbols, swastikas, the eagle etc. Even Trump himself referred to as evil, racist etc. Expect sometime next year those items and anything to do with Trump be deemed as symbols of hate “to some people”. Banned…..Will snowball from there, and anything he says on whatever social media he hasn’t already been kicked off of after the first of the year along with his rallies and so on. This is nothing more than the foot in the door move and purge Trump from the system at the same time.
Yeah, Cindy, back then ACLU was defending Nazis which made them the ‘good guys’. Americans could believe in ACLU then because those Nazis marching through Skokie were God-fearing conservatives; or something to that effect.
Once upon a time the ACLU was in my will. No more.
That’s unConstitutional Cuomo. You need to just clean up the liberal hate groups and be done with it.
Hate symbols have been banned before. The menorah in Nazi Germany. Better be careful with the cross in China. This law exposes the same kind of thinking that has been found in the lessons of the past.
Ban Zionist symbols. They are hateful to Palestinians.