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Thursday, December 17, 2020

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

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 wrote in his approval message.

“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.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

I mean, how can New Yorkers be protected from fear-installing, abhorrent symbols when a flag like the Texas flag--twice treasonous--still has *official* status in the union?

Give me a break with all of this nonsensical idiotic posturing.

Posted by: thegreatdisappointment | Dec 20, 2020 11:33:50 AM

Will New York outlaw sale of Texas flag?

It also was a treasonous flag that represented slave interests.

Posted by: thegreatdisappointment | Dec 20, 2020 11:29:17 AM

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