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OPINION

Cuomo salutes Confederate flag censors

Posted on December 19, 2020

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New York Gov. Andrew Cuomo signed a bill banning “symbols of hate,” including the Confederate battle flag, from being sold or displayed at state and county fairs and in government buildings.

Stock photo | Pixabay

New York Gov. Andrew Cuomo signed a bill banning “symbols of hate,” including the Confederate battle flag, from being sold or displayed at state and county fairs and in government buildings.

Quote

No matter how you rationalize it, you cannot benefit the oppressed by creating stronger tools of oppression.” 

Adam Goldstein, Foundation for Individual Rights in Education senior research counsel

cfriedman@restorationnewsmedia.com | 252-265-7813

Corey Friedman

Corey Friedman

More than 155 years after the guns fell silent and the troops trudged home, New York is fighting the first Civil War battle on its own turf.

Gov. Andrew Cuomo signed a bill that purports to ban “symbols of hate,” including the Confederate battle flag, from being sold or displayed at state and county fairs and in government buildings. But even the new law’s staunchest advocates acknowledge it violates the First Amendment and can’t survive a court challenge unless it’s gutted through administrative process.

Expressing full-throated support for “the spirit of this legislation,” Cuomo wrote in a Tuesday signing memo that “certain technical changes are necessary” to uphold free speech protections. The bill’s primary sponsor, state Sen. Alessandra Biaggi, D-Bronx, promised a chapter amendment.

Under the government speech doctrine, New York is within its rights to prohibit state agencies from flying offensive flags and selling related products, but that’s a solution in search of a problem. The St. Andrew’s cross has never been a fixture on Albany flagpoles. And Cuomo doesn’t need the state legislature’s approval to issue directives to his executive branch agencies.

Senate Bill S8298B’s true purpose is to block fair vendors from hawking Confederate memorabilia. The state agriculture commissioner asked county fair organizers to banish the rebel banner in August 2018, according to the Post-Standard of Syracuse. The newspaper noted that nonprofits, not local governments, run New York’s 52 county fairs and the New York Department of Agriculture and Markets lacks oversight authority.

Biaggi’s bill applies to the state fair and “any other fairs that receive government funding,” but officials can’t make state grants conditional on censorship. Privately run fairs can choose on their own to exclude specific merchandise. Cuomo and Co. can’t force their hand, University of California, Los Angeles law professor Eugene Volokh explained in a Wednesday blog post.

As for the state fair, First Amendment jurisprudence treats such venues as limited public forums where viewpoint-based restrictions are impermissible, Volokh wrote.

New York’s law resembles a California state statute adopted in 2014 that sought to prevent Confederate flag sales on public property. When Big Fresno Fair art contest organizers rejected a painting that included the flag as part of a Civil War battle scene, the artist sued in federal court, forcing a settlement. A court filing acknowledges the law “applies only to the state of California and not to private individuals.”

Texas-based federal appellate lawyer Raffi Melkonian called Biaggi’s bill “bananas,” “totally unconstitutional” and “just bonkers” in a Twitter thread dissecting its problematic provisions.

While the law lists “symbols of white supremacy, neo-Nazi ideology or the battle flag of the Confederacy” as specific examples, it otherwise leaves “symbols of hate” undefined. That gives government unbridled power to squelch any speech it desires.

Melkonian warns that state officials could seek to ban “the Christian cross, a Muslim crescent, a BLM sign, whatever PETA’s logo is” merely by calling them hate symbols.

Cuomo and his ilk fancy themselves as latter-day civil rights crusaders standing up for social justice, but their half-baked bill fails to account for the law of unintended consequences, to say nothing of individual rights. Inventing a broad category of prohibited speech is certain to backfire.

As free speech lawyer Adam Goldstein memorably wrote, “No matter how you rationalize it, you cannot benefit the oppressed by creating stronger tools of oppression.”

The Confederate flag is inextricably linked with slavery, secession and segregation. That’s reason enough for sensible people to retire it from public display. Its frequent use at Ku Klux Klan and white supremacist rallies ought to be the final nail in its coffin. Yet the flag flutters on, and for those who believe it honors their ancestors or represents Southern pride, using government force to rip the cloth from their hands will only deepen divisions.

Rebel regiments never marched on Manhattan or laid siege to Schenectady. If Confederate flags are so ubiquitous this far north of the Mason-Dixon Line, there’s a societal schism that evicting a few fair vendors won’t fix. Such a phenomenon calls for courageous conversations, not censorship.

Cuomo and state senators can whittle their law down to an internal government policy or allow the courts to dismantle it. Either way, New York will wave the white flag in this First Amendment fight.

Corey Friedman is editor of The Wilson Times and executive editor of Restoration NewsMedia. In this weekly column for Creators Syndicate, he explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To read features by other Creators writers and cartoonists, visit www.creators.com.

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