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New York bans sale of Confederate flags and other 'symbols of hate'; Gov. Cuomo admits bill he just signed has First Amendment problems
Photo by Rich von Biberstein/Icon Sportswire

New York bans sale of Confederate flags and other 'symbols of hate'; Gov. Cuomo admits bill he just signed has First Amendment problems

What qualifies as hate?

New York Democratic Gov. Andrew Cuomo signed a bill Tuesday outlawing the sale of Confederate battle flags, Nazi paraphernalia, and anything else deemed a "symbol of hate" on state property.

The bill, Spectrum News reported, builds on attempts to ban the sale and display of Confederate flags at fairgrounds.

Cuomo acknowledged even as he signed the bill that it may well have some First Amendment problems.

What does the bill do?

The bill bars anyone from selling or displaying hate symbols on public grounds unless it serves an educational or historical purpose.

The bill's summary claimed that the definition of "symbol of hate" to be "symbols of white supremacist and neo-Nazi ideology or the Battle Flag of the Confederacy."

However, the actual text of the bill does not offer such a clear definition.

According to the bill's text, "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," leaving the definition of "symbols of hate" open to bureaucrats' interpretation.

Cuomo admits free speech problems

In a statement accompanying his bill signing, Cuomo admitted that the new law may have First Amendment problems and might need to be fixed now that it has been signed, the New York Post noted.

"This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer," Cuomo said, according to the Post. "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."

But, he added, the law needs to be tweaked to "balance" New York's priorities with U.S. free speech protections.

"While I fully support the spirit of this legislation, certain technical changes are necessary to balance the State's interests in preventing the use of hate symbols on state land with free speech protections embodied in the First Amendment of the United States Constitution," he said.

The governor's office told the Post that "the governor's legal team will be reviewing the bill in consultation with the state Legislature to make a possible amendment."

The bill's lead sponsor, state Sen. Alessandra Biaggi, a Democrat, touted the governor's signing, saying, "With the signing of my bill, we are drawing a clear line in the sand. By limiting hateful symbols from being glorified on state property, New York will denounce images that represent violence while still acknowledging our nation's shameful history of oppression," Spectrum News reported.

She added that the new law will let New York "discourage the perpetuation of symbols that do not represent our values of justice and inclusion" without noting exactly what could eventually be added to the state's list of proscribed "symbols."

Biaggi's press secretary later told the Post that there will be an amendment to the bill 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."

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