New NY law bans sale of Confederate flags on state property

December 16, 2020 Associated Press

Gov. Andrew Cuomo. Photo: Frank Franklin II/AP File

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The sale or display of Confederate flags, swastikas and other “symbols of hate” on state property is banned in New York under a law signed by Gov. Andrew Cuomo despite concerns it may violate free speech protection under 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 his bill-signing memo on Tuesday.

“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 bill will help safeguard New Yorkers from the fear-instilling effects of these abhorrent symbols,” he said.

Exceptions are made for images used in books, museum services or materials used for educational or historical purposes.

The display of Confederate flags has come under fire as part of the national reckoning over racial injustice. The rebel flag has been used by Ku Klux Klan groups and is widely condemned as racist.

But New York’s new law raises free speech issues.

“The First Amendment generally protects the expression of even hateful speech, and a statute banning the sale of materials expressing those views on state-owned land is highly likely to be held unconstitutional,” said attorney Floyd Abrams, who has argued frequently before the Supreme Court in First Amendment cases.

Cuomo acknowledged in his signing memo that certain “technical changes” will be needed in the law to make sure free speech protections aren’t violated. He said he has agreed with the Legislature to address the concerns.

In November, voters in Mississippi approved a new state flag with a magnolia design, replacing the last state banner in the U.S. with the Confederate battle emblem.