No Island of Civility

By Wendy Kaminer

        New York’s aggravated harassment law is unquestionably unconstitutional, in part, as a federal court ruled in 2002.  The law includes a prohibition on communicating with someone “with intent to harass, annoy, threaten or alarm … in a manner that is likely to cause annoyance or alarm.”  In other words, the state legislature tried to criminalize intentionally annoying speech – the sort of speech in which many New Yorkers indulge every day, the sort of speech they are accustomed to hearing, especially from their elected officials.  (Annoying people is practically a job requirement for New York City mayors.)
         “The constitution has no standing in Brooklyn,” people used to joke when I was a legal aid lawyer, years ago, and it apparently has no standing in Albany either.  Instead of limiting New York’s overbroad harassment law to intentional, actual threats, (which the First Amendment does not protect,) the legislature keeps broadening the law in response to concerns about hate speech.  Last year, the law was amended to include prohibitions burning a cross “in public view” and drawing (or otherwise placing) swastikas on public or private property (without permission.) These are not minor offenses: they are felonies, punishable by maximum four year prison sentences.  This week, the state senate amended the law again to make display of a hanging noose a felony too.

        But, as I wrote here just last week, displaying a noose, drawing a swastika, or burning a cross is expressive conduct, (in other words, speech,) and the power to prohibit it is quite limited.  New York legislators (among others) should read Virginia v Black, the 2003 case in which the Supreme Court ruled that states may criminalize cross-burning only when it constitutes an intentional, targeted threat of bodily harm.  This crucial element of the crime – intent to intimidate – may not be inferred from the mere fact of the cross-burning.  As the Court stressed, the state may not “arrest, prosecute, and convict a person solely on the fact of the cross-burning itself.”

        Of course, the state can prohibit vandalism; you have no more right to draw a swastika on someone else’s property than a portrait of the Madonna.  But the state has no constitutional power to punish the drawing of a swastika more severely than the drawing of the Madonna.  The state may not criminalize points of view, however hateful.  It may only criminalize actual threats.
        Free speech advocates should exercise their rights to speak out loudly against New York’s harassment law; but, according to the New York Post, the New York Civil Liberties Union has not objected to the bill criminalizing display of nooses, “promising only to study the issue.” Yet, it was the NYCLU that, in federal court in 2002, successfully challenged the state ban on merely annoying speech.  And, just last year, NYCLU Executive Director Donna Lieberman rightly characterized the ban on swastikas and burning crosses as unconstitutional, because it punished particular viewpoints, not just actual threats. 
        The ACLU is an increasingly unreliable defender of hateful or politically incorrect speech. (Earlier this year, Lieberman also declined to oppose a symbolic moratorium on the “n-word” adopted by the New York City Council.)  Still, I hope that the Post is mistaken or that the NYCLU concludes a “study” of the anti-noose bill soon and musters the political courage to oppose it.  Timidity in defense of liberty is no virtue. 

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