New York's Controversial Anti-Swastika Law Turns Prosecutors Into Speech Police
· Reason
The term hate crime may evoke an image of an antisemite punching a Jewish person or a racist pushing an Asian woman onto the subway tracks. But in New York, hate crimes can include more than illegal acts committed against individuals. They can also include crimes committed against property.
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In New York, certain forms of graffiti can count as aggravated harassment in the first degree under a controversial law that raises free speech concerns.
"A person is guilty of aggravated harassment in the first degree" when he or she commits a variety of offenses "with intent to harass, annoy, threaten or alarm another person" based on that individual's identity, including "race, color, national origin, ancestry, gender," or religion. The law applies to anyone who "etches, draws, paints," or otherwise places a swastika on public or private property.
The aggravated harassment provision requires law enforcement to make subjective determinations. The state must decide whether an act, such as drawing a swastika, is intended to harass a specific religious group. Last year, when anti–Elon Musk protesters in Brooklyn and Manhattan vandalized Teslas with swastikas, The New York Times reported that it was "clear that the vandals…were using the swastikas to attack" Musk, Tesla's CEO and a top Trump administration adviser—"not to broadcast their own support of Nazism." Yet the cases were investigated as hate crimes.
In June, a student who raised a flag with two swastikas and a Star of David above a New York University building was charged with aggravated harassment and other hate crimes. The student admitted to the conduct but pleaded not guilty to the hate crime and aggravated harassment charges. According to the New York Post, he raised the flag because "he was upset with how NYU handled political issues around Israel." Is it a crime to criticize your school's handling of political issues regarding Israel? In New York, law enforcement makes that call.
First Amendment advocates have previously scrutinized the provision. In 2018, a SUNY Purchase student was charged with aggravated harassment after he put up posters around a campus building featuring Adolf Hitler, a swastika, and a quote from Mel Brooks' movie The Producers. Hoover Institution fellow Eugene Volokh called the prosecution "unconstitutional," noting thatthe government"can't target for special criminal punishment racist signs."
Under R.A.V. v. City of St. Paul (1992), he noted, "a ban on racist 'fighting words' is unconstitutional even if a ban on 'fighting words' generally is constitutional, so a ban on unauthorized signs that display a swastika is unconstitutional even if a ban on unauthorized signs generally is not." In other words, the government cannot forbid a specific expression of speech. While New York residents and leaders may rightfully condemn swastikas, the state should prosecute criminals for illegal actions, not motivating ideologies.
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