N.Y. Aims to Ban "Symbols of Hate" Sold by Private Vendors at State (or State-Funded) Fairgrounds

But such a ban would be unconstitutional viewpoint discrimination, whether applied to the Confederate flag, white supremacist symbols, or whatever else might be labeled as "hate[ful]."

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.

Comments

[santamonica811]

This seems like a bad idea. It seems like an awful lot of power in the hands of one person, or one committee, if she/they have the power to implement such a ban. Quis custodiet ipsos custodes?

If you can ban the Confederate flag, I presume you can also ban MAGA hats, under the same theory. Or Gay Pride shirts, etc etc. One man's meat is another man's poison.

{Do I win anything for 2 old quotes in one post?}

[Eugene Volokh]

"One man's Mede is another man's Persian."

[santamonica811]

Wow, that's really good. Off the top of your head???

[Eugene Volokh]

I think Sasha told it to me once, but a quick Google search revealed that others had thought of it long before. There is nothing new under the Sun.

[mulch]

Wow, that's really good...

[Cal Cetín]

One man's mead is another man's Bud Lite.

[Doug Huffman]

One man’s Poi is another man’s poison.
Mele Kalikimaka

[Brett Bellmore]

Please, I brew mead, and it is nothing like Bud Lite.

[Rat on a train]

One German's Gift is another man's poison.

[y81]

The easiest amendment would be one that said “any implementing regulations or rules shall be consistent with the United States Constitution.”

[Bored Lawyer]

Which would eviscerate the statute.

[y81]

Yup. But look for America’s Boyfriend (tm) (who apparently needs a new gf btw) to be on the hustings proclaiming “We banned hate symbols from state fairgrounds.”

[Krayt]

And be technically redundant. Reminds me of state laws to ban all cooperation with the federal government except as required by law.

Censor as much as you can, except where forbidden by federal law.

[Kevin Smith]

Clauses like that always irk me, they are basically saying "we want to make the most restrictive law we can without the possibility of the whole thing getting tossed out in court" and the clause ensures that the court can only carve out the bare minimum of make it constitutional

There should be a law stating that lawmakers become personally liable for damages when clauses like that are inserted into law. Same law can make governors personally liable when they sign legislation they already know is unconstitutional, as Cuomo has done here

[Bored Lawyer]

Which of the following phrases or images, appearing on merchandise, would be bannable under this new law:

(1) "I’m not Anti-Semite, I’m Anti-Termite"

(2) "All Lives Matter"

(3) Picture of Che Guevara

(4) Betsy Ross Flag – with circle of 13 stars in the blue field

(5) "Masculinity is a Disease"

(6) Picture of Thomas Jefferson

(7) ""I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy." -- Joe Biden

(8) “Hating people because of their color is wrong. And it doesn't matter which color does the hating. It's just plain wrong.”

[Krayt]

All of those will be manufactured in China. Some will be intended for sale. Others will be loss leaders intended to stir up rage and cancellation of the product, and division in the U.S., as lead by manufacturers, Hollywood, and sports stars (dependent on clothing and shoe sales, made in China) who kneel, not for GF or BLM, but to their Chinese masters who can flip a finger and cut off their tens of millions or billions.

Nah. That's too outrageous a concept. Nevermind.

[Heresolong]

Was the state or its agents routinely selling or setting up booths to display symbols of white supremacy, neo-Nazi ideology or the Battle Flag of the Confederacy? If not, one has to wonder what prompted this move?

Oh, right. It isn't about NY State selling stuff at all, it's about shutting down dissenting voices.

[Dr. Ed 2]

You know, telling young people the can't do something...

[Longtobefree]

To Spain, France, Texas, Mexico, Japan, Germany, Italy, Russia, China, Great Britain, Everyone in the middle east except Israel, and several countries no longer in existence, the flag of the US is also a symbol of hate; depending on the year in question.
The damnyankee Cuomo is pretty hateful himself.

[Finrod]

To me the Democratic Party is a symbol of hate.

[Longtobefree]

You and about 74 million others.

[Finrod]

The truth is hate speech (or in this case a "symbol of 'hate'") to those that hate the truth.

[DaivdBehar]

I would like to ban the sales of those Hate Has No Home Here signs. They are really offensive.

[Nick Gillespie's Jacket]

So is Rev. Arthur C. Kirkland really a legislator in Albany?

[Rev. Arthur L. Kirkland]

Bigots have rights, too . . . Including the right to express their shambling beliefs And exhibit their deplorable character by waving Confederate flags.

But not the right to be excused from being labeled as bigots by their betters. Or the right to avoid being defeated by their betters — the liberal-libertarian mainstream — in the American culture war.

Carry on, clingers.

[Mike45]

What is the NY criminal equivalent of "Misconduct in public office"?
Any DA in the state should have jurisdiction to bring a criminal charge of misconduct in public office. This is a blatant violation of his oath of office.