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.”
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.