The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The bill, signed yesterday, provides:
[Pub. Buildings L.] § 146. Prohibit symbols of hate.
1. The state of New York shall not sell or display any symbols of hate or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, museum, or otherwise serves an educational or historical purpose.
2. For the purposes of this section, the term "symbols of hate" shall include, but not be limited to, symbols of white supremacy, neo-Nazi ideology or the Battle Flag of the Confederacy.
[Ag. & Markets L. § 16, subd, 51.] [The Department of Agriculture & Markets] through the commissioner shall have power to:] Take any measures necessary to prohibit the sale, on the grounds of the state fair and any other fairs that receive government funding, of symbols of hate, as defined in [Pub. Buildings L. § 146], or any similar image, or tangible personal property, inscribed with such an image, unless the image appears in a book, digital medium, or otherwise serves an educational or historical purpose.
The new § 146, despite its title, is constitutional; New York can choose what it sells or displays, and doesn't have to display the swastika any more than it has to display the hammer and sickle.
But the "measures" contemplated by the new subdivision 51 are unconstitutional. Government-run fairs are "limited public fora," see Heffron v. ISKCON (1981)), when it comes to the "exhibitors … [who] present their products or views, be they commercial, religious, or political" through the fair. This means the government can impose reasonable content-based restrictions on speech in those places, but not viewpoint-based restrictions. See Christian Legal Society v. Martinez (2010); Cornelius v. NAACP Legal Defense & Educ. Fund (1985). A ban on display or sale of Confederate flag merchandise at fairs is based on the viewpoint that many people perceive the Confederate flag to express; likewise for "symbols of white supremacy" or "neo-Nazi ideology" or any other "symbols of hate" that the Department might use its power to ban.
Private decisions by privately run fairs aren't subject to the First Amendment, even if the fairs "receive government fundings." But if the government tries to use the funding to require privately run fairs to ban sales of "symbols of hate," that would be a governmental decision, which is indeed constrained by the First Amendment.
Note that subdivision 51 probably can't be challenged at this point, because it doesn't itself ban any sales at fairs; it only authorizes the Department to institute such bans. That's also why the "symbols of hate" language isn't unconstitutionally vague (even though it's not well-defined, given the "include, but not be limited to" language). Any viewpoint discrimination or vagueness challenge would have to wait until the Department implements a particular regulation.
According to the New York Post (Bernadette Hogan & Carl Campanile),
A Cuomo spokesman said the governor's legal team will be reviewing the bill in consultation with the state Legislature to make a possible amendment.
"There's going to be a chapter amendment that limits the prohibitions at the state fair, to ensure that we are respecting the protections that the Supreme Court has recognized for individuals and vendors at state fairs to exercise their First Amendment rights," explained Maya Moskowitz, press secretary of bill sponsor state Sen. Alessandra Biaggi (D-Bronx).
Hard to see exactly what the amendment would be, but I guess we'll see. Thanks to Robby Soave's post about this here at Reason for the pointer.