Hate Speech

Unconstitutional "Hate Speech" Prosecution in New York

"[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus."

|The Volokh Conspiracy |

[UPDATE, Dec. 13, 10:40 am: A patch.com article reports—alone among the sources I've seen—that "The posters carry a song line 'Don't be stupid, be a smarty/Come and join the Nazi Party' from Mel Brooks' movie 'The Producers.' The 1967 satirical film, later turned into a stage musical, is about a washed-up Broadway producer who seeks to cheat investors with a dreadful play that will bomb; too bad for him that the politically incorrect 'Springtime for Hitler: A Gay Romp with Adolf and Eva at Berchtesgaden' is a success." If that's so, then this suggests that this might have been a joke gone awry by Hassard, who is apparently involved in theater; but, as I discuss below, the prosecution is unconstitutional in any event. Thanks to commenter Naaman Brown for noting this possibility; if others have more details on what the posters actually said, please let me know.] [FURTHER UPDATE, Dec. 13, 2:06 pm: The News12 Westchester video supports the patch.com description, and includes an image of the flyer, screen-captured below; as Naaman Brown notes, "The cityscape behind Hitler and below the Nazi flag looks pretty grim. It's hard to tell but it could even be bombed out. And there's a smiley face peeping out behind Hitler's head. With the line from Mel Brooks' The Producers 'Don't be stupid, be a smarty! Come and join the Nazi Party!' that makes one weird pro-nazi poster."]

The Westchester County D.A.'s office announced:

[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus….

On Sunday evening Dec. 8, 2018, during the Jewish celebration of Hanukkah, the felony complaint alleges that 18-year-old Gunnar Hassard of Oneonta, NY, and a student at SUNY Purchase, hung multiple posters, which incorporated a swastika and symbols of Nazi Germany, on and near the Humanities Building.

The complaint states that the defendant posted multiple flyers on the campus "frequented and utilized by members of the Jewish community … causing alarm, fear and annoyance to the members of the campus community during the Jewish holiday of Hanukkah."

New York State University Police arrested Hassard and charged him with Aggravated Harassment, a hate crime which specifically states a person is guilty of this crime when one "Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property."

As readers might gather, I have only contempt for neo-Nazis. But the statutory provision to which the D.A.'s office is referring, N.Y. Penal Law 240.31, is unconstitutional. The relevant part of the statute reads,

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.

And that impermissibly singles out a particular message based on its content and even its viewpoint, which is unconstitutional under R.A.V. v. City of St. Paul (1992) (and Virginia v. Black (2003)).

Now the government can generally criminalize the posting of all signs on private property without the owner's permission. It could likewise criminalize the posting of all such signs on government property; and the government as landlord can even set up rules that impose content-based but viewpoint-neutral constraints on what is posted on its property. (SUNY, for instance, can probably bar the posting of signs that contain vulgarities, even though the government can't generally criminalize vulgar speech.) But it can't target for special criminal punishment racist signs, or anti-government signs, or signs critical of various religious, sexual orientations, or what have you. Just as R.A.V. held that a ban on racist "fighting words" is unconstitutional even if a ban on "fighting words" generally is constitutional, so a ban on unauthorized signs that display a swastika is unconstitutional even if a ban on unauthorized signs generally is not.

Nor does the requirement that the speech be intended to "harass, annoy … or alarm" change the analysis. I don't think that general bans on publicly posted speech intended to harass, annoy, or alarm are constitutional, see People v. Golb (N.Y. 2014) and People v. Marquan M. (2014); but even if they were, they again can't single out swastikas.

A ban that is limited to "true threats" of violence would be constitutional, and it's possible that a ban on true threats that use swastikas would be constitutional, too, by analogy to the ban on true threats consisting of cross-burning that was upheld in Virginia v. Black (2003); the theory would be that swastikas are especially threatening, so a law banning threatening swastikas just focused on the most dangerous subset of the forbidden category. But this statute is not limited to true threats ("intent to … threaten" is only a part of it), and there seems to be nothing in the press release or the news stories I've read that suggests that the swastikas were indeed true threats of violence. (Of course, seeing a swastika displayed can create some degree of generalized menace, but that's not enough to allow its prohibition, as Black held for cross-burning as well, where there's no specific threat.)

Swastikas are constitutionally protected, just as are hammers and sickles or burning crosses or images of Chairman Mao or other symbols of murderous regimes and ideologies. Public speech intended to "harass, annoy … or alarm" groups of people (whether Jews or conservative Christians or blacks or whites) is constitutionally protected. Posting things on other people's buildings isn't protected, but the law can't single out the posting of particular viewpoints for special punishment. And true threats of violence are unprotected, but the statute isn't limited to them, and I've seen no evidence of a specific true threat here.

Finally, a public university can't expel or otherwise discipline a student because he expresses pro-Nazi messages, though he can be disciplined for posting materials in places where such posting is not allowed—so long as others who post materials with other viewpoints in those places are disciplined for such posting as well.

UPDATE: I've just gotten and uploaded the criminal complaint, which gives no details on the flyers but also includes no evidence (other than the boilerplate "intent to harass, annoy, threaten or alarm" language) that the flyers were threatening.

NEXT: The Ninth Circuit's Activist Midwinter Meeting

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  1. >>>>>>>>>>>>>>
    As readers might gather, I have only contempt for neo-Nazis.
    >>>>>>>>>>>>>

    No, unless you post clear grovelling disclaimers repeatedly as is standard practice in modern journalism, I’ll have no idea and automatically assume you are an ardent neoNazi, KKK, altrighter, Proud Boy, Flat Earther if you write an article connected to one of the aforementioned groups that doesn’t actively show them in an unfavorable light.

    1. Does Prof. Volokh really have to spell out, “Regular VC readers might gather….”?

      Since you didn’t get the implication, us regular readers do gather (and indeed some of us share) Prof. Volokh’s contempt for neo-Nazis.

    2. I assume you think this is some recent phenomenon that reflects the liberal takeover of blah blah blah. But having to make a disclaimer that you’re principled stand does not mean you endorse who you are defending is pretty normal. Adams defending the British soldiers springs to mind.

      Unless you think human nature is a liberal plot…

      1. He’s a professor with, if I mistake not, Jewish origins. He likes to blog about free speech for all kinds of people, whether they’re likable people or the reverse.

        Anyone who would believe he’s a nazi wouldn’t believe his disclaimers anyway.

        1. No one would have thought Adams was pro-British either.

          1. At that phase of his career he was actually just on the verge of joining the Revolution, he hadn’t burnt his bridges, so he *could* have been suspected of being pro-British.

      2. “Adams defending the British soldiers springs to mind.”

        Except Adams was wrong to do so. His loyalty was to the people, he should have declined, others did.

        1. Gotta trample American values in order to save them. Way to go, Bob.

          1. Not aiding the enemy is an American value.

            1. Our values applying universally, even to our enemies, is an American value.

              Dehumanizing one’s enemies is more the values of ISIS.

              1. Who is dehumanizing them?

                I just think Adams made a mistake. You have to pick your side in war.

                1. Bob – the Boston Massacre happened well before July 4, 1776.

                  There were no “sides” to choose from.

                  Although I guess you could choose between civilized due process and whatever the opposite of that is (as you’re suggesting).

                  1. July 4 was not the starting point of the struggle.

                    1770 was a mid point between the Stamp Act and Lexington/Concord?

                    The die was already cast. Attucks and the others were just early dead.

                    They could have had due process with Loyalists lawyers, in fact they had three lawyers, one being a Loyalist.

                2. “You have to pick your side in war.”

                  That’s not very nuanced. If Adams was in the trench on Bunker Hill and Capt. Preston was leading troops up the hill, Adams would be quite right to shoot Preston; that’s what battles are all about. But war doesn’t excuse everything.

                  For example, at My Lai Hugh Thompson threatened to shoot his fellow American soldiers if they continued to harm Vietnamese civilians.

                  Joachim Peiper massacred a bunch of American POW’s at Malmedy (as well as earlier massacres of Russian civilians).

                  I guess you could characterize those as Pieper supporting his side, and Thompson and Adams supporting the other side. I think I’d rather stand with Adams and Thompson, though.

                  1. “My Lai Hugh Thompson threatened to shoot his fellow American soldiers if they continued to harm Vietnamese civilians.”

                    Bad comparison.

                    British soldiers killed unarmed American civilians at the Boston Massacre.

                    1. And American soldiers killed unarmed Vietnamese civilians in the My Lai Massacre. It was also much more savage than the relatively tame Boston Massacre. How is it a bad comparison?

                    2. I took it that Adams like Thompson acted nobly.

                      But Adams supported the side that did the killings in Boston.

                    3. “But Adams supported the …” notion that everyone deserves a fair trial and vigorous defense. Heck, he probably would have represented William Calley.

                      The Brits were on trial for a capital offense, and approached several other lawyers without finding one willing to defend them.

                      And the cases are factually different as well – witnesses disagreed on whether the Brits were justified in shooting. At least one of the men who was shot thought it was justified: “Carr admitted that the soldiers were provoked and fired in self defense and that he did not blame the soldier who shot him.”

                      Contrast that with these excerpt’s from Hugh Thompson’s wiki page:

                      “As Thompson was speaking to Calley, Calley’s subordinate, Sergeant David Mitchell, fired into the irrigation ditch, killing any civilians still moving.”

                      “Then we saw a young girl about twenty years old lying on the grass. We could see that she was unarmed and wounded in the chest. … We were hovering six feet off the ground not more than twenty feet away when Captain Medina came over, kicked her, stepped back, and finished her off.”

                      One of those incidents was troops being attacked by an angry crowd, who may or may not have been justified in firing and killing 5 men in the crowd. The other was an unvarnished atrocity where where hundreds – maybe as many as 500 – fleeing civilians, including women and infants, were killed. They are not similar incidents.

                    4. Yes, it’s more like the pathetic National guardsmen at Kent State.

            2. They weren’t the enemy yet. Things had to percolate a while longer. Adams was right to get them off.

              1. Ensuring due process is not supporting your enemy.

    3. I for one welcome our new sarcastic poster, who seems to have fooled several regulars.

  2. We (the People of the [enlightened] US) used to condemn prohibitions like this of expressions of unpopular opinions. At least we did so when our opinion leaders kind-of-sort-of-liked the opinions at issue. No one should be allowed to claim that he/she/it supports free speech without first supporting the right to “offensive” speech.

    1. We, the People in aggregate, have never condemned such prohibitions. What made the US unique (and still does) is that a vocal minority managed to make it illegal for majorities to silence unpopular speech and that new vocal minorities have continued to hold that line.

    2. Educate yourself.
      Start with the Alien and Sedition Acts.
      Then look up cases during WWI.

      1. Also, the persecution of Communists and Anarchists and the various laws still on the books about “head coverings” but clearly directed at the KKK.

  3. I live three miles from Purchase, and my wife used to work there. I will be watching this with interest. Cuomo, who I think is running for President, will be called on to comment. His comment (if ever one is forthcoming) will clearly be adverse to your somewhat obvious analysis, with nothing to support it beyond animadversions on animadversion. Popcorn at the ready…

    1. I grew up in Connecticut very close to the border, and have also been watching this carefully. There needs to be consequences for police bringing legally baseless charges like this. Nor should qualified immunity attach here. This law is pretty clearly established.

  4. Not directly on point but tangentially relevant:

    Try a Google image search for the phrase: Swastika symbol of good luck.

    1. “… seeing a swastika displayed can create some degree of generalized menace …” that often exists in the mind of the beholder. In the 2012 movie “Iron Sky” (Moon Nazis v Sara Palin) the UN Indian delegate was fingered for wearing a swastika ring. American Indian teepees and other artifacts with swastikas have been destroyed even tho’ AmInd use of the sun symbol was long before the German Workers Party even existed. Heaven forbid that someone see an oriental movie with Chinese lattice work in the background with swastika symbols.

      My relatives on the mountain had hammers in their blacksmith shed and sickles in their barn. But they were just agrarian reformers with a sense of social justice who believed industry and agriculture were the source of value.

    2. I thought about that but the law apparently allows for swastikas to be placed on property “[with] express permission of the owner or operator of such building or real property.”

      So I suppose a Nazi could buy a building and it would be okay for him to put swastikas on it but if somebody else did so without his knowledge that would be wrong.

      1. Right, but only if it would similarly be wrong to put up a dildo on someone else’s building.

        1. A swastika does not always mean they are Nazis. The swastika is also used by people that worship Norse gods a well. They have been trying to separate the swastika from the Nazis for decades now.
          Then their a local women (where I live,) who has a man next door who been threatening and harassing her life for the last ten years, But the police and local lawyers refuse to do anything to help her, because their friend with the man. She can not get a restraining order on the man. So to get even she put a Nazi flag on her property so he has to see it and annoy him, Even tho she not a Nazi. Not a very well thought out tacit. Her husband been taking it down but she keep putting it back up.

        2. A swastika does not always mean they are Nazis. The swastika is also used by people that worship Norse gods a well. They have been trying to separate the swastika from the Nazis for decades now.
          Then their a local women (where I live,) who has a man next door who been threatening and harassing her life for the last ten years, But the police and local lawyers refuse to do anything to help her, because their friend with the man. She can not get a restraining order on the man. So to get even she put a Nazi flag on her property so he has to see it and annoy him, Even tho she not a Nazi. Not a very well thought out tacit. Her husband been taking it down but she keep putting it back up.

          1. Sorry for the double post and they still have no edit button here.

  5. “In compliance with the Rules of Professional Conduct, Rule 3.6, you are advised that a charge is merely an accusation and that a defendant is presumed innocent until and unless proven guilty.”
    — Westchester District Attorney Rye Branch office

    However at Purchase College SUNY the Gunnar Hassard page is now 404 although Google still returns a match to:
    https://www.purchasecollegeathletics.com/ roster.aspx?rp_id=2244&path=mgolf
    Major: Theatre and Performance Favorite actor: Jeremy Jordan Favorite movie: The Last Five Years Favorite pro athlete: Larry Bird Favorite pro team: New ….

  6. The poster allegedly quotes Mel Brooks’s 1967 film The Producers from the skit “Springtime for Hitler and Germany”.

    But no one wants to show the actual poster or flyer. I would like to verify this before posting further.

    Andrew Cuomo @NYGovCuomo
    I am disgusted by the discovery of neo-Nazi fliers at SUNY Purchase today, and I have directed the State Police Hate Crimes Unit to assist in the investigation. Those behind this noxious act should know that these fliers only harden our resolve to combat hate in all its forms.
    1:10 PM – Dec 10, 2018

    “I am directing the State Police Hate Crimes Unit to assist in the investigation into these fliers. Those behind this noxious act should know that these fliers, far from inciting fear, will only harden our resolve to combat hate in all its forms. We will not cower in the face of hate. While they spread fear, we will spread love.”

    1. I have seen an image on YouTube attributed to News 12 with a proximately 8×10 flyer: “Don’t be stupid, be a smarty! Come and join the Nazi Party!” with a swastika, Hitler, and a Berlin street in the background.

      “I am directing the State Police Hate Crimes Unit to assist in the investigation into these fliers. Those behind this noxious act should know that these fliers, far from inciting fear, will only harden our resolve to combat hate in all its forms. We will not cower in the face of hate. While they spread fear, we will spread love.” — Andrew Cuomo

      If this turns out to be Hassard. an 18 y.o. theater and performance major, posting a Mel Brooks parody of Hitler, what “toxic social dynamic that is spreading like a cancer” would that illustrate?

      1. Naaman, while Hassard might avoid conviction on the grounds that he lacked the intent required by the statute, Prof. Volokh’s observations on its constitutionality don’t depend on those facts.

      2. Cuomo mouths soothing words (I guess) but is weasel wording around actual illegalty. He can sound onboard while still maintaining technical deniability against censorship accusations.

        1. That is actually a useful skill to one who is forced to represent constituents with wildly different views (theater majors, College Republicans and Hasids, e.g.).

      3. Capturing a frame of the video of the flyer at 1280 x 720, the cityscape behind Hitler and below the Nazi flag looks pretty grim. It’s hard to tell but it could even be bombed out. And there’s a smiley face peeping out behind Hitler’s head. With the line from Mel Brooks’ The Producers “Don’t be stupid, be a smarty! Come and join the Nazi Party!” that makes one weird pro-nazi poster.

    2. posting offensive material is not a hate crime and Cuomo’s statement demonstrates the actual danger, the government deciding what speech is and is not permitted. The only way to combat offensive speech is more speech. If this offends you then you respond by posting material showing why this person or persons are complete idiots.

  7. So what will happen here?
    Will there be a plea deal or will the charges be dropped once wiser heads prevail?

    This looks to me like lawfare with the process being the punishment.

    1. Al- I think you’ve got it.

  8. They can charge him and they can try him, they may even convict him but it will never hold up on appeal. Speech is protected, even hate speech. The problem with the left is they believe in free speech as long as they are the only ones allowed to speak and their ideas are the only ones heard. Rep. Ted Lieu said yesterday he wishes he was able to regulate speech because he would like to silence Fox News. I think it is hilarious how one new channel has the ability to so enrage and frustrate the entire left because it actually tells the other side of every story. The problem with progressivism is unless it has total control of the entire conversation, then it cannot win because the truth shows it is more totalitarian, than free, just like this prosecution against speech the left finds offensive.

    1. Lieu’s brand is indeed shooting his mouth off more than most Congresspeople, but your paraphrase is way off.

      The full quote:
      I agree there are serious issues, but the speech issues are protected by the First Amendment. Would I like to regulate Fox News? Yes, but I can’t because the First Amendment stops me. And that’s ultimately a good thing in the long run.

      Needless to say, your diagnosis of ‘the problem with progressivism’ says more about your worldview than it does about real life progressives.

      1. I wish I could get away with it but I can’t.
        That’s hardly a ringing endorsement of free speech and the First Amendment from Lieu and that does say a very great deal about the Left’s attitude to fundamental constitutional principles.

        1. Your interpretation requires you to straight-up ignore his last sentence.

          Admitting that you have an urge you’re holding back is better than pretending you’re nothing but virtue or, worse, rationalizing your urge as actually good.

          We all have a bit of us that wants the other side to shut up, or at least stop doing what they’re doing. Are you going to argue the right doesn’t have a bunch of people who want to end liberalism by hook or by crook?

          1. I’ve not the slightest desire to shut anyone up, maybe you’re just projecting.

            Re the current zeitgeist, by far the majority of calls to restrict speech now comes from the Left, at least they’re quite open over their wish to silence speakers and banish ideas that cause distress to their delicate little censorious sensibilities.

            It’s clear Lieu’s commitment to a core constitional right belonging to all Americans is ambivalent at best, no ringing endorsement of freedom of speech there from Lieu, just a lame nod to “the First Amendment stops me and, all things considered, that’s probably for the best.

            1. You may indeed be a better person than I am.

              But my larger point stands – you should not condemn someone for noting an impulse they have but ignore because it is bad. That’s humanity triumphing over our lower nature, and IMO it is us at our best.

              by far the majority of calls to restrict speech now comes from the Left. This is very much not evident. The war against SJW’s is going very strong on the right, especially in this season of the War on Christmas. So, too the calls to regulate twitter and facebook’s speech.

              It’s clear Lieu’s commitment to a core constitutional right belonging to all Americans is ambivalent at best
              ‘clear’ is a tell. Whenever I write it, I check to see if I’m putting a narrative in place of analysis. Because ideology and narrative are what is clear; real analysis is always more muddy. I have bad news for you there. I’m no fan of Lieu’s schtick, but what I see is someone speaking from an area of ideological strength triumphing over more partisan frustrations.

              Another huge tell is that you needed to edit his last sentence to dismiss it – from ‘that’s ultimately a good thing in the long run’ to ‘all things considered, that’s probably for the best.’ That looks to me like you didn’t even realize as you altered a direct statement in your mind to add ambiguity and lameness in order to get to where you wanted to get.

              1. “by far the majority of calls to restrict speech now comes from the Left. This is very much not evident. The war against SJW’s is going very strong on the right, especially in this season of the War on Christmas. So, too the calls to regulate twitter and facebook’s speech.”

                From the above it’s “clear” you inhabit some parallel universe from the one I reside in.

                As for Lieu, I stand by my gloss, your gloss notwithstanding.

                1. Your gloss is actually a paraphrase that results in a lie, so my default position on all of your future posts for the indefinite future is that you are a liar.

                  Do you have some other peer group that is producing a boost?

                  1. *first “future” a scrivener error.

                2. I’m not saying the right has a monopoly on wishing for speech restrictions either, only that your ipse dixit that the left does is manifestly wrong.

                3. My gloss is his quote…

              2. “You may indeed be a better person than I am.”

                An incredibly low bar.

                1. WTF, dude.

                  1. What has you confused?

                    1. I’m just not used to people taking the trouble to post just to tell the world they hate me personally.

                    2. It’s not any trouble. You post so much stupid shit, it’s more effort to resist.

              3. “But my larger point stands – you should not condemn someone for noting an impulse they have but ignore because it is bad. That’s humanity triumphing over our lower nature, and IMO it is us at our best.”

                1. This is supposed to say “upvote,” but “upvote” was in angle brackets & seems to have not been read. Anyway: upvote!

                  1. But that’s not what Ted Lieu said. He admits that it’s the external constraint of the First Amendment that stops him, not anything internal. He would deserve condemnation, not praise, if he said that he would love to be able to rape women, but there’s laws against that, which is a good thing. And he deserves condemnation as the censorious asshat he aspires to be.

  9. I think it is ironic that the same people who support the BDS with all of its anti-Semitic rhetoric while attacking Israelis as racists are the same ones so “offended’ by these posters. Seems their outrage is only present when there is political gain.

    1. Of course both are legal, but even as not a big BDS fan, I can see ways to distinguish it from putting swastikas everywhere.

  10. If he was a sincere National Socialist (and I don’t know), then putting up posters quoting The Producers would show a lack of self-awareness, since an important premise of The Producers was that Nazis are not only bad, but mockable.

  11. Finally, a public university can’t expel or otherwise discipline a student because he expresses pro-Nazi messages, though he can be disciplined for posting materials in places where such posting is allowed — so long as others who post materials with other viewpoints in those places are disciplined for such posting as well.

    I think this is missing a “not” between “posting is” and “allowed.” Even so amended, I think this is somewhat overbroad. Can’t a public university discipline a student who takes up time in a calculus class to spout pro-Nazi messages as long as it would similarly discipline a student who took up class time with a disquisition on the New York Mets’ off-season acquisitions? There may, however, be classes where either topic is germane, in which case no discipline would be appropriate, at least as long as the manner of expression was appropriate for classroom discussion.

    1. 1. Whoops, sorry about the “not”; fixed, thanks.

      2. No, the government can’t discipline students for off-topic pro-Nazi comments in class more than for pro-BDS or anti-Trump messages (or, presumably, pro- or anti-Mets messages). And even if there is some special rule for in-class comments (which I doubt), it certainly can’t discriminate based on viewpoint as to things people post, whether or not posting is generally allowed in those places.

      1. I agree that a public university can’t discipline someone who wastes class time on non-germane pro-Nazi rants more than for wasting class time on non-germane rants about the Mets’ off-season acquisitions and I don’t think I suggested otherwise. My question was whether they can both be disciplined. I see no reason they can’t.

  12. As ever, the dark night of fascism is said to be descending upon the right; but it always seems to land on the left.
    (See also: the long list of racist and homophobic hoax attacks)

    1. Come off this generalizing confirmational anecdotes to fit your narrative. You’re smarter than that lazy reasoning.

      Certainly neither side is as adverse as they should be in using government power to inhibit their ideological opponents, but your side is the one with a President attacking almost every outgroup there is, threatening private businesses with public retaliation, and attacking the legitimacy of our intelligence and law enforcement communities.

      1. “but your side is the one with a President attacking almost every outgroup there is, threatening private businesses with public retaliation, and attacking the legitimacy of our intelligence and law enforcement communities.”

        1. It’s hard to take seriously people who use “attack” to mean criticize.
        2. Doesn’t your side have a governor who has threatened a civil-rights group with public retaliation?

        1. I do take your first point. It’s very angry criticism, and uses ‘enemy of the people’ more than I’d like, but I think I agree with you. Like my brief, tumultuous affair with calling comments smug, I will do my best to retire speech-as-attach rhetoric.

          A single anecdote with respect to a Governor versus many from the President. A President the entire GOP is rallying around regardless of…anything, really.
          I’m pretty comfortable with which side ends up netting as more problematic when it comes to the misuse of governmental power.

          Maybe President Elizabeth Warren or whomever will end up being worse, but for now the party of small government is going to have a hard time pointing across the aisle for the real villains in this particular story.

  13. “otherwise places” seems to be doing a lot of work here

    Does the statute actually reach easily removable posters? The other things are more like vandalism.

  14. The swastika (as a character ? or ?) is a geometrical figure and an ancient religious icon in the cultures of Eurasia, used as a symbol of divinity and spirituality in Indian religions.[1][2][3][4] In the Western world, it was a symbol of auspiciousness and good luck until the 1930s, when it became a feature of Nazi symbolism as an emblem of Aryan race identity and, as a result, was stigmatized by association with ideas of racism and antisemitism.[5][6]
    So this was perfectly acceptable until the National Socialists used it.
    Of course, as a religious icon, it would still be verboten on a college campus.

    1. And burning crosses were a perfectly valid way of rallying Scottish clans until the Ku Klux people ruined the brand.

  15. And they don’t care about the constitution and if you challenged the law it would at best be 5-4 for the constitution but maybe not since Kavanaugh and Roberts may squish.

  16. Presumably Professor Volokh finds nothing legally objectionable if a private college?Yale, for instance?disciplines a student who posts swastikas on campus to express hate, and to intimidate fellow students. I hope EV will correct me if I am wrong about that.

    My experience has been that content-based censorship, under the rubric of values education, has long been a point of pride among at least some private colleges. And that the law does not intervene against their freedom to enforce as educationally salutary whatever values they may choose.

    So the distinction, and the constitutional point, EV makes here must depend entirely on the fact that SUNY Purchase is a public college, which must play by different rules. It’s a point to invite reflection. How far should legal enforcement of values-free public education extend? Apparently, EV is ready to assert that it extends so far that only one value may be defended, and that to the exclusion of all others?that lone exception being freedom of speech. All other values, derogated as content-based intellectual contraband, are off limits for enforcement.

    I doubt such radical adherence to abstract principle has ever been typical practice among most colleges, whether public or private. I question the wisdom of making it so.

    1. Its not a college discipline proceeding, its a New York state criminal law.

      1. And a felony, no less.

        1. But other than that, great comment.

          1. “Allow me to pontificate at length without reading anything relevant first and proceed to spell out the truth for you; it is only natural as I am more intelligent than everybody else and therefore know everything they do and more.”

            I think the gold part is the mention of self-reflection that was clearly written without any beforehand.

            1. “I think the gold part is the mention of self-reflection that was clearly written without any beforehand.”

              That was, indeed, the high point of his prolixity.

      2. The First Amendment demands post-K12 educational institutions be viewpoint neutral. ST appears not to like this state of affairs, presumably he would prefer a more qualified approach, with either himself, or others of a similar intellectual disposition, doing the qualifying.

      3. Yeah, I get that, Bob. I gave a moment’s thought to whether that point had any relevance. It doesn’t. That’s because it makes zero difference to the objectives Volokh, or any fellow travelers on the road to weaponized speech,* bring to this debate.

        We aren’t talking here about Nazis marching down a street carrying swastika signs. If we were, I would be on your side. But instead, we’re talking about a campus, as we always seem to be on issues like this. Mainly because right wingers wrapping themselves in the 1A have been systematically targeting campuses, trying to get court decisions protecting weaponized speech.

        Nor have any of you, as far as I have ever seen, even once suggested that public university administrators aren’t, or shouldn’t be, anything but full-strength state policy makers, with state enforcement powers, equivalent to cops and government prosecutors. So please back off the hypocritical quibble, and see if you can think of some forthright way to engage.

        What do you think? Should free speech really be the only value a public university can enforce on campus? I’m not saying the answer is obvious, but I do suggest the question should at least provoke thought.

        *By which I mean ostensible political speech which is actually intended to inflict real harm on targeted individuals.

        1. “Mainly because right wingers wrapping themselves in the 1A have been systematically targeting campuses, trying to get court decisions protecting weaponized speech.”

          The only “weaponizing” that’s occurring is inside your over-heated imagination as any cursory examination of the First Amendment cases brought to litigation by the non-partisan FIRE will attest.

          https://www.thefire.org/

        2. Your first comment talks exclusively about colleges, no mention that it is a criminal proceeding under a statute that does not affect only colleges.

          Your second comment is a laughable attempt to say that you knew it all along.

        3. “We aren’t talking here about Nazis marching down a street carrying swastika signs. If we were, I would be on your side. But instead, we’re talking about a campus,…”

          I want to be sure I understand your position. Is it that you think Nazis should not be imprisoned for marching down Main Street, but should be if they march through campus? Because that’s the issue in this case.

          “Should free speech really be the only value a public university can enforce on campus?”

          Is the free speech part of the first amendment the only part of the constitution you think public schools ought to be able to ignore, or do you support other exceptions? Can the legislature make it a crime for people on campus to not be Presbyterian? Should people arrested on campus still have fifth or sixth amendment rights?

          If not, I’m interested in why you think a law that says ‘Criticizing Donald Trump on campus is a felony’ should pass constitutional muster while ‘campus litterbugs will be flogged’ shouldn’t.

          1. I doubt you actually do want to understand my position, but here it is anyway. I don’t think public university campuses, any more than private ones, should be governed using the no-holds-barred rules appropriate for the public square. I think public universities are purposeful institutions, no less than private businesses are, and that each ought to be entitled to enforce rules?including rules affecting speech?appropriate to further their respective purposes. In both cases, I think the managers of the institutions, not legislators and courts, are the appropriate authorities to choose the regulations.

            My concern is about campuses; I extend that concern to this discussion only because of what seems a perverse tendency for right wingers to benchmark public campus administration not against other campus administrations, but only against norms applied to policy making for the public square. It is that tendency, not my advocacy, which entangles questions of criminal justice with what ought to be entirely different questions regarding campus regu lation. I take that entanglement to be purposeful and political?sought by right-trending political advocates seeking ways to hamper campuses which they take to be hotbeds of opposition to right-wing politics.

            1. Your comment leaves me as mystified as ever. It would help if you could address the specifics at hand. In the case under discussion, we have someone being charged with a felony for putting up posters the prosecutor didn’t like. The law under which he is charged has nothing to do with whether the posters were displayed on a campus or main street, yet you keep talking about public campus administrators as if they had some role in this.

              I’m really trying to tease out what you actually mean from the vague splatter of words. Is your proposal that someone can be imprisoned if that say ‘Donald Trump is a dimwit’ on campus, but not off campus, if that’s the whim of the college president? Because that seems to be what you are saying.

        4. “By which I mean ostensible political speech which is actually intended to inflict real harm on targeted individuals.”

          Please define the “real harm” you intend.

          It isn’t a terribly intellectual argument, but it is as correct today as when my dearly departed, conservative Mom said it, that “sticks and stones” aren’t the same things as “words.”

    2. You present a false contrast. Freedom of speech isn’t a “public value” that we want colleges to “enforce”. It’s the law, which binds state colleges every bit as much as it binds state legislatures. We expect colleges not to enforce the freedom of speech but to respect it; in other words we want the courts to enforce it against them.

  17. An image of the poster can be seen at 1:09 in the video here. . There was a better image on one of the news stories earlier but it appears to have disappeared.

    It doesn’t seem like a joke, but it’s not threatening either. Truly bizarre.

    1. It just seems like a really shitty joke to me.

      1. The smiley face and the Producers quote seem to put it more in the tasteless joke category.

        As in, Blanche Knott level tasteless, not that I would know anything about that.

  18. Rep. Ted Lieu (D-CA): ‘Would Love’ to Regulate Speech, But ‘First Amendment Prevents Me’

    “I would love to be able to regulate the content of speech,” Lieu stated. “The First Amendment prevents me from doing so, and that’s simply a function of the First Amendment. But I think over the long run, it’s better that government does not regulate the content of speech.”

    1. We discuss this above.

      1. “I would love to be able to regulate the content of speech.”

        He obviously speaks for a huge, dangerous contingent of the left here.

        1. Obviously.

  19. Joy Behar: Maybe Orrin Hatch ‘Needs to Go to Jail’ for Supporting Trump

    ?\_(?)_/?

  20. Hmmm….liberal media calls white people, especially white men, Nazis (or white supremacists) since Trump was elected. Fast forward two years and you wonder why white men might actually start to think they are Nazis. Thanks liberal media for making white people realize that you are completely against them.

    1. liberal media calls white people, especially white men, Nazis

      I’m a white guy, and I don’t feel like I’m being called a Nazi. Funny, that.

  21. I am saddened that the Jewish community was exposed to this feeble campaign, sadder still that its proponent had no grasp of Brooks’ genius. Nonetheless, I am inclined to agree that the prosecution as contemplated will not survive constitutional challenge. For the short term, likely not a result that will please many people, but in the long run, guarding speech protections, pleasant speech or not, is the better course.

  22. The problem here is really very simple. To one side of ideology the state is seen as the provider of rights. To the other the state is seen as an umpire to make certain views are protected but violence, coercion and force are not. This problem is a symptom of a greater malaise rapidly infecting and killing the country.

    America was a republic that had a Creator Judeo Christian God as the author of unalienable rights. The Constitution was a part of that God’s natural law. Government was deemed dark and evil becaus it is a creature of fallen men who are themselves sons of Adam and heirs to His sin of pride given to him by Satan in the Garden of Eden.

    To offset this the government created then was built on the model of checks and balances using Law of Nations as a reference book plus the combined genius of the framers. These checks and balances have been removed almost in toto. The result is government has become unchained and unbound. Unalienable rights have been replaced with revocable privilege determined by governments and bureaucrats …always of course for our own good and safety. For those that resist expect Orwell’s 1984. For those that submit expect the possibility of Huxley’s Brave New World. This particular piece of regualtion is more Orwellian than Huxley and is an anathema to a republic.

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