Posted by 16 December 2020
If you want to sell Confederate flags on government property in New York, Gov. Andrew Cuomo has other plans for you. This week he signed legislation to prohibit the sale of "symbols of hate" on state-owned property. Critics say that this ban almost certainly runs afoul of the First Amendment.
Under this new law, no "symbols of hate" could be sold on public property, including state fairgrounds. These symbols are defined to include "symbols of white supremacy, neo-Nazi ideology, or the battle flag of the Confederacy." Even private sellers on public land could not sell them, which would encompass vendors at fairs or others who rent space on state-owned property. Museums and other educational institutions are exempt.
Gov. Cuomo defended his action, saying that "by 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."
Critics note that this ban is likely unconstitutional. They note that courts have long held that hate speech is protected by the First Amendment. By focusing the ban on the meaning of a symbol, they argue that the law is discriminating against certain viewpoints. The Constitution does not allow this.
The governor acknowledges that certain aspects of the bill may need to be fixed to make them constitutional. However, he signed it regardless of these concerns.
Do you think that it violates the First Amendment to ban the sale of Confederate flags on public property?