NY Gov. Andrew Cuomo Signs New Law Banning Sale and Display of Confederate Flags, Swastikas

New York Gov. Andrew Cuomo has signed a new bill into law that prohibits selling or buying “hate symbols’” such as the swastika and Confederate flag as well as their display on any state property such as the state and local fairgrounds.

The new law, effective immediately, severely limits the display of a range of symbols on state property. Symbols of neo-Nazi ideology, Confederate flags, are all defined by the bill as “symbols of hate.”

The bill does not go as far as making the buying or selling of such symbols totally illegal, nor does it seek to impose a blanket ban on the display of such symbols by private citizens, as is the case in certain European countries.

Critics see the move as a violation of the First Amendment.

In Germany, for example, the displaying of Nazi symbols and salutes or selling of goods that sport such  “symbols of anti-constitutional organizations” is strictly banned. Even social media users who have shared images bearing the symbols have faced penalties or imprisonment. However, Germany is a rare and exceptional case.

The New York law, in comparison, strictly applies to state property, although it will also apply to private actors on public property.

Exceptions will be made for images appearing in books – such as textbooks, works of fiction, or other material serving educational or historical purposes – as well as museums and other media.

While Cuomo supported the bill introduced by Sen. Alessandra Biaggi, he conceded that the rule could require some alteration so that the state doesn’t run afoul of free speech protections codified in the First Amendment to the U.S. Constitution.

“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 in a bill-signing memo.

“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.”

He continued: “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.” 

Indeed, the law could eventually face challenges that could see the Empire State embroiled in legal battles over the bill. In 2008, the U.S. Supreme Court ruled that infamous hate group the Westboro Baptist Church was well within their rights to stand on public property and curse and yell at mourners attending funerals for military service members.

According to free speech lawyer Floyd Abrams, problems with the bill could extend beyond a quick fix on mere “technical” grounds.

“Governor Cuomo is correct that the First Amendment may require changes in the law in light of the First Amendment,” Abrams told the New York Post. “A private entity can choose to sell or not sell offensive symbols but when the government bans the sale of offensive, but constitutionally protected symbols, on its property the First Amendment comes into play.”

According to the governor’s office, a legal team will review the bill and consult the state legislature in case any amendments are needed.

“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,” said Maya Moskowitz, the press secretary for bill sponsor Sen. Biaggi.

Symbols such as the Confederate flag, which was used by the slave-owning states that were defeated in the U.S. Civil War of 1861-65, as well as monuments to Southern slave-owners and military leaders, have increasingly come under fire in recent years as blatant embodiments of white supremacy and anti-Black bigotry.

As the U.S. faced months of social upheaval and protests this year for racial justice and against police brutality, there was a surge in activity by concerned groups of citizens who targeted statues for toppling or lobbied authorities for their removal from public squares and government facilities.

The upswell in anti-racist social movement activity has also been accompanied by the rise of far-right white supremacist and neo-Nazi groups, including outright domestic terrorist groups who have threatened deadly attacks on civilian targets and public officials.