First Amendment Fiasco: Cuomo Bans the Sale of Confederate Flags in New York

Posted: Dec 18, 2020 11:45 AM
First Amendment Fiasco: Cuomo Bans the Sale of Confederate Flags in New York

Source: AP Photo/Frank Franklin II

Democratic New York Gov. Andrew Cuomo is terrible. You all know this. His nursing home policy is responsible for killing thousands of the elderly. Oh, the benefits of the Empire State being a deep blue bastion. No matter what, he won’t suffer the consequences of his actions. There will be no accountability. He’s a Cuomo, a fixture of New York politics. The man will be governor for life if he chooses, but he has presidential aspirations. You see that with his gun control pushes, his abortion extremism, and his declaration that New York isn’t for conservatives. He’s an a-hole, to be honest. During this COVID pandemic, he’s being given a pat on the back for doing what medical experts said shouldn’t be done. Remember that whole ‘flatten the curve’ goal. New York didn’t do it. Too many people were infected, and it also doesn’t help that Bill de Blasio, who is just mentally defective, decided to do next to nothing, even when evidence was clear that a contagious pathogen was spreading through New York City. Cuomo tried to lecture residents about canceling Thanksgiving only to try and pull a political fumblerooski by inviting his mother and daughters to the governor’s mansion for Turkey Day. It was discovered and he rescinded the invites, but that’s the story of Cuomo in the COVID era. COVID infection rates that scale the size of Everest, mass death among those who are the most vulnerable to dying from it and getting caught flouting his own COVID protocols. Oh, and he allegedly sexually harassed an aide, but that’s a story for another time. 

You’d think with all of this, especially how he managed COVID, that he would be on death’s door politically. Nope. He can take other measures out for a spin, like banning the sale of the Confederate flag and other “symbols of hate” in the state. It’s a free speech nightmare waiting to happen. It’s a First Amendment minefield, but he doesn’t care. Robby Soave of Reason has more and notes how the bill his royal highness signed into law this week is a legal trainwreck. I’ll take what is unconstitutional for $1000, Alex* (via Reason):

New York Gov. Andrew Cuomo, a Democrat, signed legislation on Tuesday prohibiting the sale of Confederate flags on public property, including at state and local fairs.

Cuomo was well aware that such legislation is likely to fail a First Amendment test, but this did not deter him.


Cuomo noted that "certain technical changes are necessary" to make sure the ban is compliant with the First Amendment, which protects free expression—including the expression of hateful ideas.

Those changes should probably involve scrapping most of the bill, which is a mess. It prohibits the sale of "symbols of hate," which it defines as "including, but not limited, to symbols of white supremacy, neo-Nazi ideology, or the battle flag of the Confederacy." Keep in mind that we live in a world where some people think the OK hand gesture is a white supremacist signal…

The bill also exempts museums, books, and "educational purposes" in general, which provides wild interpretive leeway. And the aforementioned fairgrounds provision applies to private actors on public property, which is almost certainly unconstitutional. In 2008, the Supreme Courtruled8–1 that a notorious hate group, the Westboro Baptist Church, could stand on public property and shout obscenities near the funerals of military service members. There's little question that the First Amendment broadly protects hateful speech on public property

Yeah, this feeds into a larger observation about the Democratic Party, which is that they’re free speech averse. In fact, they’re becoming anti-free speech at an alarming rate as more and more of the loony ‘woke’ faction graduate college and begin infesting their respective workspaces. Anything offensive should be banned is the new war cry. And speaking of presidential aspirations what better way to pitch these illiberal morons of the Democratic base than say, ‘hey, you know I passed a bill targeting the sale and display of the Confederate flag and other symbols of white supremacy.’ It’ll probably fall flat, as Alexandria Ocasio-Cortez will probably be in the candidate field, but you can see the checklist he’s marking off.

*Rest in Peace, Mr. Trebek.