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Why Sign Bills That Are Admittedly Unconstitutional?

We often wonder what Gov. Andrew Cuomo is thinking when he makes the decision to sign or veto legislation sent to his desk by the state Legislature.

We’re going to do so again, for what seems like the umpteenth time in recent memory, over Cuomo’s approval of legislation banning the sale or display of Confederate battle flags on state property. The bill also banned other “symbols of hate,” including swastikas and other known insignias historically associated with racism and other violent acts against targeted religious or ethnic groups.

We aren’t calling into question Cuomo’s motivations here, nor those of the state Legislature. Opposing symbols of racism is a laudable goal.

What fails the smell test here is the governor’s signature of a law that isn’t finished yet. As part of his bill signing memo, the governor said he thinks the law needs technical changes to avoid constitutional free speech challenges.

“Governor Cuomo is correct that the First Amendment may require changes in the law in light of the First Amendment. A private entity can choose to sell or not sell offensive symbols but when the government bans the sale of offensive, but constitutionally protected symbols, on its property the First Amendment comes into play,” Floyd Abrams told The New York Post last week.

Don’t discount Abrams’ concern. Sen. Daniel Patrick Moynihan, the well-respected four-term former U.S. Senator from New York state, once said Abrams “is the most significant First Amendment lawyer of our age.” It was Abrams who defended The New York Times in court when the paper published the Pentagon Papers. He tends to know what he’s talking about when freedom of speech is concerned.

Why would Cuomo sign into law a bill that is so obviously flawed? We would prefer he vetoed the bill so that legislation that stands a chance of passing constitutional muster — and the freedom of speech guaranteed to New Yorkers — could be passed.

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