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Amendments made to state ban on hate symbols

As it turns out, New York’s ban on the sale of hate symbols on state property isn’t really a ban.

When Gov. Andrew Cuomo signed A.10729/S.8298B into law in December, he signed the law while admitting it needed to be changed so that it didn’t violate the U.S. Constitution. New legislation introduced by Rodneyse Bichotte, D-Brooklyn, removes the word sale from the legislation and adds language to prohibit anyone from attaching or affixing to state-owned property any symbols of hate as defined in Section 146 of the state Public Buildings Law.

Bichotte wrote that the purpose of A.962 is to make technical corrections to the legislation passed last year and signed into law by Cuomo in December. In addition to removing the word sale from the law, Bichotte also added a severability clause, which is a legislative device that states if any part of a bill is held unconstitutional, only that particular part of the bill is unconstitutional. That allows the rest of the legislation to remain in effect.

“This bill would limit the display of the Confederate flag, as well as other symbols of hate, on or within the grounds of public property,” Bichotte wrote in her legislative justification. “Further, it makes clear that New York state will not tolerate racism, exclusion, oppression, and violence through the display of such antagonistic and, deeply hurtful symbols.”

Amendments were necessary because the Supreme Court has recognized the First Amendment rights of individuals and vendors at state fairs to exercise their First Amendment rights to sell such products. Private entities can choose to sell or not sell offensive symbols, but a government ban on the sale of offensive, constitutionally protected symbols violates the First Amendment. In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment’s free speech clause. The issue was about government prohibiting the registration of trademarks that are “racially disparaging.”

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,'” wrote Justice Samuel Alito in his majority opinion.

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