New York Governor Andrew Cuomo signed law this week banning and restricting the display of Confederate flags and other symbols of “intolerance and hatred” on public property on public property. As a longtime free speech advocate, you often have to defend speeches that you find offensive. However, the first change is not intended to protect the language of the population. We don’t need protection for language that people support. The test of free speech is to support those you disagree with and the speech you disagree with. This is one such case. In my opinion, the Cuomo legislation violates the First Amendment.
We previously discussed the alarming withdrawal of freedom of speech in the West, particularly in Europe. Indeed, Norway recently criminalized private speaking at home, which was deemed hateful or offensive. Indeed, this legislation follows the European view that has destroyed freedom of expression on this continent.
Cuomo wrote: “[b]Restricting or selling the display and sale of the Confederate flag, Nazi swastika, and other symbols of hatred on state properties, including the state fairgrounds, will help protect New Yorkers from the fear-inducing effects of these hideous symbols . “
The question is who will protect our free speech when politicians list banned symbols that groups have found offensive?
In particular, Cuomo admitted that “certain technical changes are required” to ensure that the ban is consistent with the first change. The first “technical change” would be the repeal of the law.
Here is the language:
146. PROHIBITION SYMBOLS OF HATE.
1. THE STATE OF NEW YORK DOES NOT SELL OR DISPLAY SYMBOLS OF HATE OR SIMILAR PICTURES OR RELATED PERSONAL CHARACTERISTICS DESCRIBED BY SUCH PICTURE EXCEPT THE PICTURE APPEARS IN A BOOK OR SIMILAR PICTURE, AND DELIGIT.
2. FOR THE PURPOSES OF THIS SECTION, THE TERM “SYMBOLS OF HATE” INCLUDES BUT NOT LIMITED TO SYMBOLS OF WHITE SUPREMACY, NEO-NAZI IDEOLOGY, OR THE BATTLE FLAG OF THE CONFEDERACY.
Take all necessary steps to obtain sales on the bases of the State Fair and other fairs that receive government funding of Hate Symbols as defined in Section 1 One Hundred and Forty of the Public Buildings Act OR TANGIBLE PERSONAL CHARACTERISTICS DESCRIBED WITH SUCH PICTURE EXCEPT THE PICTURE WILL APPEAR IN A BOOK, DIGITAL MEANS, OR OTHERWISE FOR EDUCATIONAL OR HISTORICAL PURPOSES.
In particular, the law only permits sale or display if they serve “an educational or historical purpose”. What if they serve social, ideological, political, or literary purposes? These are also protected by the first change. In addition, images that are not limited to the broad definition of “symbols of white supremacy, neo-Nazi ideology, or the Confederation battle flag” can be blocked. Rather, it covers a wide range of undefined “symbols of hatred”. Many people differ in which groups or symbols they consider “hateful”. Legislation is an invitation to plunge down the slippery slope of censorship.
In the Matal v Tam case, the Court ruled against the government’s application of the Lanham Act’s devaluation clause. Justice Samuel Alito wrote:
Speech that is demeaned on the basis of race, ethnicity, gender, religion, age, disability, or similar reason is hateful. The proudest boast of our freedom of speech jurisprudence, however, is that we protect the freedom to “express the thought we hate”. United States v. Swimmers, 279, US 644, 655 (1929) (Holmes, J., Dissens).
Judge Anthony Kennedy added the warning that “a Laws that can be directed against speeches that are considered offensive to part of the public can be directed against minorities and dissenting views to the detriment of all. ”
The bill was sponsored by representatives David Carlucci, Leroy Comrie, James Gaughran and Andrew Gounardes