Cuomo attacks free speech to deflect attention from his harmful policies

New York’s state government is harassing Jewish religious schools while having precious little to say about anti-Semitic hate crimes in New York City. Perhaps to deflect attention from this, Democratic Gov. Andrew Cuomo is restricting free speech.

Cuomo ordered state police to assist the investigation of allegedly anti-Semitic posters at the State University of New York at Purchase. As a result of the investigation, SUNY-Purchase “student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus.” But it turns out that the posters were based on a “satirical film,” Mel Brooks’s “The Producers” — not racist or Nazi propaganda. This is described in law professor Eugene Volokh’s commentary, “Unconstitutional ‘hate speech’ prosecution in New York.”

Even if the posters weren’t satirical, but genuinely anti-Semitic, they would still be speech protected by the First Amendment. As Prof. Volokh notes, the statute Hassard is being prosecuted under is unconstitutional. For one thing, it “impermissibly singles out a particular message based on its content and even its viewpoint, which is unconstitutional under R.A.V. v. City of St. Paul (1992) (and Virginia v. Black (2003)).”

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This prosecution reflects the false belief by New York State officials that hate speech is not protected by the First Amendment. Cuomo has said that “hate speech is not protected as free speech.” But this is untrue: The Supreme Court noted last year that “hateful” speech that “demeans on the basis of race, ethnicity,” or “religion” is nevertheless protected, in its decision in Matal v. Tam. And the Supreme Court struck down a hate-speech ordinance in R.A.V. v. St. Paul (1992).

Nor does it appear that there is any other basis for prosecuting Hassard, even putting aside the First Amendment. Distributing racist or anti-Semitic flyers, even to minority households, does not constitute disorderly conduct as the term is normally defined. (See, e.g., State v. Schenk, 2018 Vt. 45 (Vt. 2018) (distributing KKK flyers, even to minority households, was not disorderly conduct by threatening behavior).

Nor does the fact that the posters appeared on a college campus change this. There is no “hate speech” or racism exception for speech on college campuses. (See, e.g., Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) (professor’s writings denigrating the intelligence of blacks were protected); Iota Xi Chapter of Sigma Ch Fraternity, 993 F.3d 386 (4th Cir. 1993) (racist, sexist “ugly woman” skit was protected); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (striking down college policy against racist symbols or epithets that create racially hostile environment, as applied to students)).

Given the obvious problems with this hate-speech prosecution, why did New York’s governor assist it? Probably to deflect attention from how his administration’s other policies are harming some of his Jewish constituents.

Cuomo’s administration is targeting Jewish religious schools, trying to control their curriculum, note Elya Brudny and Yisroel Reisman in the Wall Street Journal. Violent hate crimes are targeting Jews in New York City, who comprise most of the victims of hate crimes in the City. The perpetrators of anti-Semitic hate crimes in the city are overwhelmingly from racial demographics that support the Democratic Party, not whites or conservatives, as even the New York Times concedes. That is a politically awkward reality that Cuomo, who blames hate crimes on the GOP, would rather not talk about. So he says little about those hate crimes.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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