New York Gov. Andrew Cuomo Bans Sale of Confederate Flags, Despite Knowing This Has First Amendment Problems

"While I fully support the spirit of this legislation, certain technical changes are necessary."

New York Gov. Andrew Cuomo, a Democrat, signed legislation on Tuesday prohibiting the sale of Confederate flags on public property, including at state and local fairs.

Cuomo was well aware that such legislation is likely to fail a First Amendment test, but this did not deter him.

"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.

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.

These very obvious issues—of which Cuomo, by his own admission, is quite aware—should probably have stopped the governor from signing the bill, but alas. Here's hoping President-elect Joe Biden does not reward Cuomo's abysmal track record on individual liberties with the U.S. attorney general job.