New York's Controversial Anti-Swastika Law Turns Prosecutors Into Speech Police

The term hate crime may evoke an image of an antisemite punching a Jewish person or a racist pushing an Asian woman onto the subway tracks. But in New York, hate crimes can include more than illegal acts committed against individuals. They can also include crimes committed against property.

In New York, certain forms of graffiti can count as aggravated harassment in the first degree under a controversial law that raises free speech concerns.

"A person is guilty of aggravated harassment in the first degree" when he or she commits a variety of offenses "with intent to harass, annoy, threaten or alarm another person" based on that individual's identity, including "race, color, national origin, ancestry, gender," or religion. The law applies to anyone who "etches, draws, paints," or otherwise places a swastika on public or private property.

The aggravated harassment provision requires law enforcement to make subjective determinations. The state must decide whether an act, such as drawing a swastika, is intended to harass a specific religious group. Last year, when anti–Elon Musk protesters in Brooklyn and Manhattan vandalized Teslas with swastikas, The New York Times reported that it was "clear that the vandals…were using the swastikas to attack" Musk, Tesla's CEO and a top Trump administration adviser—"not to broadcast their own support of Nazism." Yet the cases were investigated as hate crimes. … [Subscribe to continue reading]