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.
Banning hate symbols from being sold. This is how it starts. Then they go on to define “hate symbols” to include a larger and larger category of symbols and crosses and Bibles will be banned. Family photos with a mom and dad and kids? Soooo hateful! Che Guevarra T-shirts and Communist symbols will be encouraged, of course
Not sure if this is appropriate here and if not just please delete but with regards to the censorship and curtailing of free speech you have been writing about, I have my own experience I’d like to relate and maybe get a little feedback on. Yesterday in Facebook I was banned for responding to what I refer to as a “troll”, an individual with a fake looking profile who went after me over a simple and rather benign comment I had made on MSN’s FB page regarding the removal of the Robert E Lee statue from the Capitol. I merely wrote that it didn’t bother me one way or the other, and that my life and I doubt anyones life revolves around standing around staring at statues. I concluded by pointing out that I felt had no one mentioned it, and just quietly removed it in the night that no one would likely have noticed. That’s when someone with a picture of a broken windshield for a profile pic posted on my comment insulting me, using a derogatory term to demean the fact that I am white and the race in general. I responded by indirectly suggesting he was either a troll or a coward for not having any valid profile photo. While I understand its best not to engage in such discourse, the fact is in the heat of the moment when someone attacks we often respond. Which i did and I think my response was tepid at best. I’d post a screenshot (I saved them) if you could post photos here, but literally that’s all I said. He went on to further demean me over the color of my skin in a follow up comment, using another derogatory term to describe all white people. 2 minutes later, I found myself banned for 7 days on Facebook from commenting or posting for merely responding that without a profile pic he is likely a troll or at least a coward. Facebook flagged this comment, and banned me for 7 days over it. When I appealed, I pointed out his comments were attacking me over my skin color, I received a response indicating his comments “do not violate Facebook Community Standards” and were allowed to stand. And they are still there, mocking me over the color of my skin and denigrating me for being white. Mine however were reviewed and found to be in violation of community standards so my “restriction” on my account for 7 days, here during the Christmas holidays. While it does curtail a lot of family and friend activity (virtual greeting cards, stupid little memes and animations, etc that family and friends do on Christmas) I can live without that. But I can’t live without my business page, which I rely on for all of my work. I;m no scholar, no lawyer, just an old tree climber\faller and Facebook is where I do 100 percent (or did) of my advertising. In fact every single client I’ve gotten in the last year has come from Facebook and my Facebook professional page. If it wasn’t for that fact, I’d delete my account and forget about it. Find an alternative and move on. Someplace that practices a little more freedom of speech no doubt. But I do rely on my FB page and if I deleted it I’d lose several dozen online customer “reviews” that I worked very hard for over the past several years. All of those references appear live on my website (www.chriswebertreesurgeon.com) and I need them. They’re irreplaceable and the work I did to get them, well, lets just say some of it I’d like to not have to try and repeat, ha ha. So they are of real value to me. So I can’t just delete the account and walk away. But I feel my rights in some way are being violated. Now I know Facebook hides behind a wall of anonymity and the “we’re a private company and we can do what we want” thing but the fact is Facebook is much more now. Facebook is like a public meeting hall, or platform used regularly, even daily now by our State, Federal and Local Governments to address us officially and provide us with important information. Additionally law enforcement uses it routinely now to address us, as do health officials and authorities to transmit important matters of public safety. I don’t see how it can continue to hide behind the “we’re just a private entertainment company” dodge any longer. Its like an official public address system and a giant public town hall. Anyway for my little issue it seems like there is an active double standard going on, as I went through the “Community Guidelines” of which they provided me a long list of when they banned me for 7 days, and one of the most glaring ones is you can’t make derogatory comments about peoples race, skin color, etc. But apparently Facebook tolerates it if the one being targeted is white? That’s what they are effectively saying to me it seems. I flagged the comments once I was banned and they responded, even on a second review that the comments “did not violate FB community standards”, but mine did. And a read of the standards makes it clear that is not the case. So the only thing I can conclude is Facebook doesn’t tolerate racist remarks unless they are being made against Caucasians? Either way it appears I’m being targeted (I get constantly called a “old boomer” and racist, etc (I am far from racist and I was not criticizing the removal of the statue I was pointing out it seemed irrelevant to daily life) . Right now I’m working on porting over the years of communications with clients so I can permanently shut down my FB account, but its a daunting task and one that I don’t know if I will be able to ever complete. But do I have any other options? Is this really permissible ,even for a so called private company? Can they legally permit racist comments against one ethnicity and not another? I imagine the answer is ultimately yes, but figured I’d ask someone who would know. Anyone in here with legal experience of this kind I’d appreciate hearing their take on it. Thanks in advance.
The democrat party once was a stalwart defender of Civil Liberties now that are an outright enemy of them. The ACLU has no idea what they used to stand for when they had integrity. The old saying “I may not like what you have to say but will defend your right to say it” is replaced with “if anything offends someone you will be prosecuted”
Notice he didn’t mention Nazi national socialist swastikas or International Socialist Hammers and sickles or the symbols of Antifa and BLM.
“There are at the present moment many Colored men in the Confederate Army doing duty not only as cooks, servants and laborers, but real soldiers, having musket on their shoulders, and bullets in their pockets, ready to shoot down any loyal troops and do all that soldiers may do to destroy the Federal government and build up that of the rebels.” – Frederick Douglas
So much for the Confederate flag being a “symbol of hate” and “white supremacy”.
Cuomo is nothing more than your average run of the mill statist who loves to act like one.
Which is why so many people are fleeing New York in droves.
There were also free black slave owners in the South who were probably not happy to lose their property. Rebels all the way.
It’s a symbol of hate and white supremacy.
Douglass also said “among rebels were black troops, no doubt pressed into service by their tyrant masters” and “Rising above vulgar prejudice, the slaveholding rebel accepts the aid of the black man as readily as that of any other. If a bad cause can do this, why should a good cause be less wisely conducted?”
Estovir, you’re trying to tell us the Confederate Army was noble because “Black soldiers were serving it”????
What a load of tripe!
They were noble because they fought with skill and honor and sacrifice in defense of what they believed to be their country. Even Lincoln and the best Union generals believed that. Slavery was not the only issue and most regular soldiers didn’t own slaves.
they had ballz and we don’t. that’s why we admire them.
we should rebel, too. but the state governments are as weak as 3/2 beer so there is no leadershp of any kind whatsoever
it all gets vacuumed up by the dirty rotten fake system
it’s time to stop paying taxes and voting in these fake elections. then it will collapse
however, specific ideas of how to replace it with something better must be worked out, and readied, or the collapse may suck even worse than this
Saloth Sar
“they had ballz and we don’t. that’s why we admire them.”
***
That’s a good part of it too.
JONATHAN TURLEY,
Two suggestions for your excellent site’s far less excellent comment forum:
1. Get better forum software that has a more clear layout (proper reply thread layout, expandable/compact-able threads) and management tools (edit, block, report).
2. Initiate moderation, even if only by the group reporting of spam or “off topic” process. Lacking that ,the block process.
This excellent source of truth spoken to power has a comment forum that is difficult to navigate & larded with disassociated garbage and trolling. Rarely do the comments cite case law or court decisions, it’s a mud throwing gallery of the lowest sort. This may be desirable under strict free speech, but it is also very difficult to navigate or follow threads. Lacking a costly moderator, a good course for improvement would be the ability to report commenters who are single-minded parrots of conspiracy/dogma and the ability to actually view the forum clearly. other issues: I get email notice regarding replies to my posts that do not take me to said post, the indent for sub threads is too indistinct, there is no confirmation for replies etc. Please bring the comment area up to the speed of the articles.
I don’t think JT reads the comments. If you want to reach him, try emailing him, jturley-at-law.gwu.edu (replace -at- with @).
Who decides what is considered a symbol of hate? Sounds like more political theater.
Ban the Sale and Image of Watermelons !!
No, he’s acting like a school administrator. That’s the Democratic Party’s constituency. School administrators routinely piss away their authority by (1) dithering in response to real problems and (2) issuing chickensh!t directives in re petty problems or non-problems. (That, and wasting everyone’s time and patience on inane assemblies and meetings).
There are about four reasons to own a Confederate battle flag: to honor your great-great-grandfather, to amuse yourself (a scale model of the General Lee does well for this), to declare your adherence to Southern culture, and to irritate the karenwaffe.
That’s going to put a crimp in the Antifa/BLM protests. What are they going to do, carry blank grey (no black, no white) protest signs? Mad Maxine wouldn’t dare even open her mouth in New York!
They won’t be subject to the ban. And incidentally, I do not have a wordpress account, hence the changing avatar.
the black guy running for Senate in Georgia, Ralph Warnock, should be pleased. He hates hate, he hates whites, he hates racists and he hates his wife. He married her in 2016, she says he ran over her foot during a fight and now divorced at age 51.
they are all frauds….the hate police
https://www.ajc.com/news/local-govt–politics/warnock-wife-involved-dispute/MCQYpvtswlZIIGdItrfcBJ/
https://dilbert.com/search_results?terms=run+over+foot
You should save that for co-workers. I’m wagering Natacha got disability the last time someone ran over her fat gelatinous foot.
For the record, in the UK they already have hate speech laws and people are routinely arrested for mean tweets and mean looks. One little old lady was arrested for honking her horn at a black woman at the gas station. The old lady, who said she was honking because the black lady was taking too long, was convicted of racist hate speech. A man was arrested and imprisoned for throwing a ham sandwich into a mosque. He was murdered in prison. This is the bright future that awaits our country. The freedoms our forefathers died for are now fodder for the woke mob. And while the leftists continue to falsely describe themselves as “liberals” (which comes from the root word for freedom), conservatives babble about 2A. There is no 2A without 1A. There is no America without 1A. Under Cuomo’s new law, even this comment would probably be deemed hate speech and therefore a criminal act. Lucky for me, nobody is listening.
Almost 45,000 new Covid cases in California yesterday.
Astonishingly, the politicians’ edicts, masks and fatwas aren’t impressing the virus.
How many cases would there be without the masks and edicts?
Gray Aninymous is another troll, likely Allan, George, John Say
It is common knowledge that the safest place to be is in WeHo bath houses. Its where I always go when not fighting Trumpers on Turleys site
That you feel compelled to go to websites you already know you disagree with and ‘fight’ says everything about you and absolutely zero about the issues at hand. Thanks for finally admitting that is your motivation for popping up here, though. We all already knew, but it was nice to be present when you wrote your first honest comment.
About the same. We started with masks late, and the percentages, which are very low, haven’t shifted much if at all with masks.
James, that seems to be the case. Rigid mask controls have had little effect in most states and no measurable benefit in Europe.
I suspect that wearing ineffective masks can increase the rate of infection if they make people feel safer than they really are in crowded rooms with less uv light and recycled air.
I wear the mask as a courtesy but I behave as if it offers no protection at all, washing often, avoiding crowds and closed public places, etc.
if somebody is coughing out pathogen at your face, then a mask even a weak barrier can reduce the inoculum which reduces the severity of a potential infection. same as flue. that much is for real.
otherwise, they dont do jack, maybe worse than jack, as you suggest
Saloth Sar
There is actual real world data on masks outside of the laboratory.
N95 and actual surgical masks have a small beneficial impact in the lab they are about 77% effective, in the real world it is only about 20%.
That small an impact is little more than a speed bump for a respiratory virus with a transmission rate between 2.4 and 3.8
Two layer cloth masks are probably not harmful, but they are not helpful.
One layer cloth masks have a negative impact.
None. The epidemic would have ended months ago. All you have accomplished is slowing it down.
It hasn’t stopped in states without edicts.
No it has not. But the curves in those states look more like the traditional logisitics curve of an epidemic.
While CA is mostly missing the pronounced peaks – but also missing the rapid drop into the valleys.
The end result is the same in terms of deaths over the long run and infections.
There is no study from anywhere that has found a statitically significant impact of any c19 Policy – except making the epidemic last longer.
It doesn’t look like a logistic curve in any state.
About half of all states have relatively clean logistics curves for cumulative cases through october.
We are having a real 2nd wave as UV, Temp, and humidity become more optimal for C19, and we are seeing a 2nd logicistics curve rising from the first.
That is the pattern in states that have done little.
In those that have done alot the curve is a mess.
It is a very unimpressive cold virus.
CDC- US Total deaths by year:
2013: 2,596,993
2014: 2,626,418
2015: 2,712,630
2016: 2,744,248
2017: 2,813,503
2018: 2,839,205
2019: 2,855,000
2020: as of 11/14 total deaths= 2,512,880
It’s a scamdemic.
It’s the leading cause of death in the US right now. Almost 1/8 of all US deaths this year were caused by Covid, even though it didn’t really start spreading until March. Only a Russian troll like you calls it a scamdemic.
And yet as the CDC data from Rhoades demonstrates – there has been no change in the projected total number of US deaths for 2020 – in fact we appear to have a tiny bit LESS deaths that projected.
That means that C19 deaths are replacing other deaths.
That people are dying of C19 who would have died of the flu, or pneumonia, or heart disease or cancer any of myriads of other causes that happen each year.
I did not expect C19 to have no effect at all on total 2020 deaths.
But I did expect that the EXCESS deaths from C19 would be about 5% of the total C19 deaths – we already know 94% of those who die from C19 were likely dying within 6 months anyway.
But your hysteria should not be surprising.
The left may claim to be more scientifically inclined. But they are severely math challenged, and ultimately you can not do science without being good at math.
Deaths of young people up 5k.over last year, Rhodesy. Hospitals inundated. Sad thing is, trolls like you are stuck making excuses and trying to justify them while the trump administration knows full well the impact — they’ve just tried to ignore it.
Elvis Bug
“Deaths of young people up 5k over last year.”
Rhoades provided data from CDC. We can all check that.
You have not said where your data was from
Further I highly doubt your data is correct. There are just not enough total C19 deaths of young people.
“Hospitals inundated.”
And yet nowhere have we exceeded 60% of capacity.
“Sad thing is, trolls like you are stuck making excuses and trying to justify them while the trump administration knows full well the impact — they’ve just tried to ignore it.”
No one is making excuses.
There appears to be little or no excess deaths in 2020 – not due to C19, not due to the flu, not due to anything.
We have burned down the economy destroyed peoples livelyhoods over something that appears to have done nothing more than advance the death of people who would have died anyway by a few months – and maybe not that.
A freind in healthcare is coming over tonight for dinner.
We though we might have to ask her to mask – as she was told she might be dealing with C19 patients this week because of a spike and because other areas of healthcare were shitting down because of the spike. Neither of these occured.
So far the actual evidence “Elvis” is that there is nothing that government could have or should have done about C19.
And that it has done nothing except change the cause of death on 300,000 death certificates.
Had we done nothing C19 would have cost us billions in lost productivity – instead it has cost us trillions in lockdown costs.
Did Trump F’up – absolutely !! like every single world leader.
We would all have been better off had government done nothing.
Elvis Bug
The CDC yearly death numbers are damning to the left.
Not only do they not indicate a mortality effect from Covid.
They also show no disruption in long term trends from PPACA or any other democratic swill.
We are told millions will die of PPACA is repealed or would have died if it did not exist.
But the data does not show that.
But then you lefties always were math impaired.
Do you have a link to the CDC data ?
Using your data the estimated deaths for 2020 will be 2,893,379
The data you provided shows a trend of increasing deaths of 1.016%/year
Following that trend the projected deaths in 2020 without C19 would have been 2900000
So we have had under 40,000 more deaths in 2020 than in 2019 and nearly exactly the same deaths as would be projected without C19
And for this we have destroyed the economy and made ourselves miserable.
Pfizer statement on the lack of guidance from the Trump admin: “We have millions more doses sitting in our warehouse but, as of now, we have not received any shipment instructions for additional doses.”
Pat Trump on the back for a job well done.
Dear leader lining up 3 catastrophic disasters for end of term: Covid, economic crash, biggest cyber hack of government computers ever by the Russians. Yay team!
Elvis Bug
The russians also hacked the Chinese – which is how we found out so many democrats were literally in bed with china.
I thought Trump was in Putin’s pocket ?
I guess there is no requirememnt in left wing nut world for anything they say to make sense.
The problem is with the states.
Public health is a state issue.
The Trump administration expedited the development of the vaccines.
It is currently expediting the shipment of the vaccine.
It is providing guidance as to who gets C19 vaccines.
But the final decisions, are all state responsibilities.
As we have seen from start to finish states are inept.
The problem is quite simple to solve.
Get government out of this entirely.
Have pharmacies order the vaccine from Pfyser, Moderna, and AZ,
And have them vaccinate people on a first come first served basis.