from the free-speech-and-all-that dept
Let’s be clear: that fact that there are people all over America that for any reason would want to display the Confederate battle flag is monumentally stupid. For starters, the flag is the symbol of a rebellion launched over southern states’ desire to own other people. Don’t give me the “states rights” argument; it’s entirely invalid, unless the states right you’re talking about is slavery. On top of that, the Confederacy, you know… lost. Proudly displaying the symbol of loserdom is both hilarious and befuddling.
Now that that’s out of the way, entirely too often the folks who abhor the Confederate flag participate in a massive over-reaction to it. We saw this after Dylann Roof proved just how evil humanity can be in shooting up a historical African American church, with far too many people and companies focusing on displays of the flag, as though that were the real issue.
And now, in a move far more disappointing, Andrew Cuomo has signed into law a ban in New York State on the sale of the Confederate flag and other “symbols of hate” on public property.
“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.”
Cuomo noted that “certain technical changes are necessary” to make sure the ban is compliant with the First Amendment, which protects free expression—including the expression of hateful ideas.
Should it not be obvious, it would be hard to state how performative and stupid this all is. This law will not survive a First Amendment challenge. There is no ground on which free speech is compatible with a law banning private persons from selling expressive symbols on public land. A whole lot of people are pointing to Germany’s prohibition on Nazi imagery and symbols, as though that country’s protection of free speech means that such prohibitions are compatible with free speech. They aren’t. At all. We might want to say that Germany by and large has free speech, but that law is an exception to the rule, not evidence of it.
And Cuomo, who reportedly has his eyes on being Biden’s Attorney General, most definitely knows better than this. And even beyond that, it’s worth noting that this bill is a complete mess, somehow managing to be too broad and too ineffectual to have the desired effect.
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.
And, to reiterate, Cuomo absolutely knows this law is going to get struck down one way or another. This is all pure theater for the cameras, the kind of performative woke-ism that is the exact opposite of small-L liberalism.
So why bother doing this at all?