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Jul 15 2015

Proposed Ban on Swastika Not Enforceable

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.”

murray nazi banThe 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.

5 comments

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  1. Nathan Thurm

    When clients come for advice do you give speeches or advice ? This is a golden pretext to ban all tow ads along Nassau and Suffolk shoreline. For all the same reasons Hawaii did (and more, it’s a distracting safety issue for any pilot landing Southbound at Republic, Islip or Westhampton Beach).

    1. Oscar Michelen

      I give advice which sometimes includes giving speeches. Any other questions? Kate Murray has no authority to ban all tow ads either by the way.

  2. Nathan Thurm

    I can’t tell whether (1) you’re being disingenuous with the Kate Murray can’t ban or lead the legislature to ban tow ads because she is the Town of Hempstead supervisor and we are talking about the Suffolk coastline which is the Town of Southampton (2) or you are simply too busy giving trite 1st Amendment speeches to look into the law and you mistakenly think the appropriate local legislature (I speculate Suffolk County perhaps with an assist by Nassau) can’t ban all aerial ads along the just as beautiful as Honolulu Long Island Shoreline.

    The roadmap is the county of Honolulu (and the FAA apparently now is on the same side as the 9th Circuit and Honolulu officials that local rules of this sort banning aerial ads are not preempted by FAA issuance of a waiver to operate aerial tow ad activities in the same area as the ban.)

    The particulars of banning tow ads along the L.I. shoreline — which body must act and the specifics of any ban — that is called legal work. If you want to give speeches, try politics.

    1. Oscar Michelen

      (1) I’m never disingenuous. (2) My post says that a ban on one particular type of speech in tow ads is unenforceable. You can call it a trite First Amendment speech but that’s what the law sometimes is reciting trite speeches. (3) So in one particular case when Hawaii decided to ban ALL aerial advertising a federal court upheld the ban. That case is an outlier – and bans have been overturned in many communities since the Hawaii case on First Amendment and other grounds. For whatever reasons the FAA decided not to intercede in the Hawaii case as they have in other matters. And as you note the FAA has issued waivers to certain companies in Hawaii to fly banner ads since the ruling. So this was essentially accomplished because the FAA said OK (4) All ordinances including the Hawaii one had to go through the FAA for approval and they have declined approval in many communities across the country. (5) Kate Murray would likely have to get at least all the other Townships affected by the flyover to get on board. Then she would likely need the Governor to sign off on a bill written by the appropriate State legislators.Then FAA approval. Whatever bill or ordinance would be proposed would have to ban all ads not just some ads to make sure it was content-neutral.So that’s jobs and businesses being affected in a tough economy where tow ads are a cheap way to get your message across to lots of people. (6) So let Kate Murray grandstand all she wants The fact is my analysis was right and my opinion is my own. You are free to disagree and work with Kate on this project. Good luck

  3. Nathan Thurm

    Thank you for your reply.

    @OM: “(1) I’m never disingenuous.”

    As you wish, wrong on the law then. It was one or the other.

    @OM: ” (2) My post says that a ban on one particular type of speech in tow ads is unenforceable. ”

    Yes, but as you know I addressed your comment to me regarding the inability of Murray to ban ALL tow ads. And I specifically said both in my initial post and in responding to your comment to me that this Nazi flyer provided a golden opportunity to ban ALL AERIAL ADS along the LI shoreline.

    I have two Circuit Court cases from the 9th, a 2002 case and 2006 case (including SCOTUS declining to review the 2006 case). You have how many Circuit cases — ZERO ? So the “that case is an outlier” rings hollow. That 2006 Hawaii case is the law. And it is followed by the FAA. And should Nazi flyer want to see how the 2nd Circuit comes out — go for it. He will likely lose and he can dig deep into his war chest to find out.

    @OM: “So this was essentially accomplished because the FAA said OK ”

    The 9th Circuit explicitly ruled that the FAA regulations do not trump this local law. You’re confused as to who bows to whom. The FAA to the 9th Circuit not the other way around. While I only took a quick look into this, I believe the FAA initially thought the preemption issue as decided by the 9th was still open to interpretation but certainly by 2014 they were making other noise to the effect that they always did and still do follow the original 2002 case, which case made clear that a tow waiver does not trump any local laws that relate to your tow operations.

    The FAA statement I found from online search read, in relevant part “This certificate does not waive any state law or local ordinance. Should the proposed operations conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the operator’s responsibility to resolve the matter.”

    @OM: “And as you note the FAA has issued waivers to certain companies in Hawaii to fly banner ads since the ruling. ”

    Which is entirely irrelevant to whether local officials may ban this activity because, again, issuance of a waiver does not mean you do not have to comply with local laws. I doubt the person issuing these routine FAA waivers does anything other than determine whether you have complied with the FAA rules for a waiver. It is highly unlikely such person would make any inquiry into any local laws that would otherwise impact your flying. That isn’t the job of the FAA. You need a waiver simply to operate a tow plane. That you get a waiver does not mean you do not have to comply with local law. The FAA explicitly states this in the waiver doc. You must comply with all FAA rules for a waiver and if a waiver is issued you must ALSO comply with all local laws.

    If you think the local law is trumped by Federal law you can go to court and find out if you are correct. Which happened with the Hawaii cases. The tow operator lost. Both times.

    OM: “So that’s jobs and businesses being affected in a tough economy where tow ads are a cheap way to get your message across to lots of people”

    Why not also bring in the children that will starve as a result of a ban ?

    Anyway, I won’t rehash all the good reasons for a ban. Hawaii has already articulated them and LI has the same reasons (and arguably one or two more related to the volume of plane activity in the airspace at issue here which is extreme, especially on the weekends). I’m sure the tow operators had lawyers arguing all the bad reasons for a ban.

    Apart from the ban as far as this Nazi flyer is concerned, if he returns I would suggest Murray have someone investigate and publicize the name of the F.B.O. that rented the plane (guys into Nazi flags tend not to own planes) so the general aviation community can weigh in on who they want to do business with. In addition, a few well-timed spot checks by the FAA should be on the menu. This F.B.O. biz is highly regulated and you want to make sure all paperwork is in order. Solely to protect the public, of course.

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