Hate messages and free speech: Student arrested for posting Nazi posters on SUNY campus

An 18-year-old student at State University of New York at Purchase was charged with a felony hate crime, first-degree aggravated harassment, for posting Nazi images on campus. The alleged hate messages surfaced on the last night of Hanukkah. Some 10 percent of undergrads at SUNY Purchase are Jewish. (ABC News, December 11, 2018, by Julia Jacobo)

Eugene Volokh in Reason,  December 12, 2018, writes that the posting of the messages could have been a “joke gone awry,” as the posters included a song line from Mel Brooks’ “The Producers.” But in any case, Volokh thinks the prosecution violates the First Amendment. The law states that a person is guilty of the crime if he or she “Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.” As such, absent “real” threats, the law violates free speech rights by forbidding speech based on content.

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