Town of Hempstead Supervisor Kate Murray held a press conference yesterday to propose a ban on use of the swastika in any location including the air. Joined by Jewish leaders, she made her comments at Point Lookout Town Park, where a plane trailing a swastika banner flew along the beach Saturday. Was that act offensive? Of course. Was it hate speech? Very likely. Was it legal? – Yes.
NY State law already forbids the etching, painting, drawing and placing of swastikas on public or private property without the permission of the property owner. Murray described this as the “loophole that they have been flying their planes through.” That’s true. But the State law is really just lip service as well. You can’t “etch, paint, draw or place any symbol” including the American flag on public or private property without the permission of the property owner. While the current law seems to target one form of symbol, it does no more to regulate it than the laws against criminal mischief and graffiti. I suspect had it allowed other symbols to be used on property without permission but banned swastikas, it would be struck down as a content-based ban on speech. The same could be said for a ban of aerial display of a swastika – it cannot be the only symbol blocked by a law or that would be a prior restraint restriction on speech based on its content.
Murray, in proposing the law over airspace in which she has no jurisdiction, was quoted in Newsday saying the following:
“Not all speech is free. We know you can’t yell ‘fire’ in a movie theater. . . . We feel that the swastika, which has been so identified with the killing of 6 million Jews and many others, that you cannot separate the swastika from the most terrible time in our history.”
The second sentence is 100% accurate – you cannot separate the swastika from the Nazi Holocaust. The first sentence is an incorrect application of First Amendment law. Hate speech is protected speech I get so tired of hearing TV pundits including professors saying “But this is hate speech.” So? Who needs a Constitutional amendment to protect “loving speech” The point of the First Amendment is to protect speech we hate to listen to – to acknowledge that our country is strong enough to allow others – even those who hate us – to speak freely about their hate. The old canard about yelling “Fire” in a theater is also misused by Murray. You can’t yell “Fire” in a theater because it present imminent threat of harm, a clear and present danger to public safety. Furthermore movie theaters are private property so owners can restrict speech inside much more than a governmental entity can. March on the sidewalk in front of Murray’s office with a picket sign reading “FIRE” and see if anyone stops you.
The International Raelian Movement, a group that says its goal is to “rehabilitate” the swastika so that it’s seen as a sign of peace (Why? who knows) is apparently behind the flyover. The group performed a swastika flyover in July last year along some South Shore beaches. Newsday quoted Thomas Kaenzig, 42, of Las Vegas, the leader of the group as saying “Banning something is never the answer. Education is the answer.”
I agree. So while the swastika remains a disgusting symbol of hate and genocide, ignoring those who seek to promote is far better than proposing legal recourse and holding press conferences that only serve to highlight the group and that will not pass Constitutional muster.