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Cuomo Bans Sale of Certain Civil War Paraphernalia, Despite Admitting First Amendment Issue

The messy legislation is sure to be challenged on the grounds of free speech.

It was less than a year ago that NASCAR made the controversial decision to ban the displaying of the Confederate battle flag on their properties, and now New York State looks to be heading in a similar direction.

Governor Andrew Cuomo issued a stern statement on the subject after signing a bill into law that effectively bans the sale of certain “hate” items on public grounds. 

“This country faces a pervasive, growing attitude of intolerance and hate—what I have referred to in the body politic as an American cancer,” he wrote. “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.”

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But the often-embattled New York Governor admitted that there were free-speech ramifications that have yet to be addressed.

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Those changes should probably involve scrapping most of the bill, which is a mess. It prohibits the sale of “symbols of hate,” which it defines as “including, but not limited, to symbols of white supremacy, neo-Nazi ideology, or the battle flag of the Confederacy.” Keep in mind that we live in a world where some people think the OK hand gesture is a white supremacist signal, and the New York Human Rights Commission has been particularly inclined to over-interpret the government’s mandate to ban things. This is not a recipe for restraint.

The bill also exempts museums, books, and “educational purposes” in general, which provides wild interpretive leeway. And the aforementioned fairgrounds provision applies to private actors on public property, which is almost certainly unconstitutional. In 2008, the Supreme Court ruled 8–1 that a notorious hate group, the Westboro Baptist Church, could stand on public property and shout obscenities near the funerals of military service members. There’s little question that the First Amendment broadly protects hateful speech on public property.

The move comes after a year of intense racial tension in America, that saw not only massive demonstrations in the streets, but also the removal of several Confederate monuments, in both official and unofficial ceremonies.

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