In the wake of Saturday's White Supremacist rally in Charlottesville, Virginia that resulted in numerous injuries and the death of one anti-racist protester, Governor Andrew Cuomo on Tuesday called for higher penalties for New Yorkers who incite, or participate in, a riot.
The so-called Charlottesville Provisions would expand the purview of the state Human Rights Law, to send the message that "New York will never tolerate advocacy or the incitement of imminent violence," according to the governor's office.
The existing Human Rights Law—which protects groups and individuals targeted on the basis of perceived race, national origin, ancestry, gender, religion, age, disability or sexual orientation—would include inciting to riot and rioting against a protected class.
According to the state penal code, inciting to riot entails urging "ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm." A landmark 1969 Supreme Court case involving a Ku Klux Klan leader's speech, Brandenburg v. Ohio, found that speech is protected unless it is "directed at inciting or producing imminent lawless action" and "likely to incite or produce such action."
It's the difference between pledging to burn down City Hall while participating in a Midtown rally, and making that same pledge while standing on the City Hall steps with kerosene.
The penalty for engaging in rioting would increase from an E felony to a D felony under Cuomo's proposal, punishable with up to seven years probation. Inciting to riot would increase from an A misdemeanor to an E felony, punishable with up to four years probation.
"The ugly events that took place in Charlottesville must never be repeated, and in New York we're going to stand united against hate in all of its forms," Cuomo stated. "Our diversity is our strength and this legislation will help protect New Yorkers and send a clear signal that violence and discrimination have no place in our society."
But according to civil rights attorney Normal Siegel, the measures are symbolic at best.
"With hate crime laws, the purpose was to deter and reduce discrimination. It hasn't worked," Siegel said. "If it worked, why would we have Charlottesville? It just increases penalties and makes the bigots martyrs."
Defense attorney Kenneth Perry, who has represented dozens of people arrested during Black Lives Matter protests in NYC, called the measures "reactionary."
"Their intentions can be great but the way they work out in practice is they go far beyond what the intent was, often because these things are drafted so quickly," he said.
Perry emphasized that there are already laws that exist to prevent these offenses.
"The increased penalties just force defendants to plead to things because they are afraid of the result. So it becomes coercive. The state already has so much power. The balance is already so skewed as it is."
"We look forward to reviewing Governor Cuomo's proposal and doing all that we can to ensure New York State is a safe haven against discrimination," a spokeswoman said, while touting the city's existing laws as "one of the strongest in the nation."
New York City's Human Rights Law protects New Yorkers from physical force or threats of physical force, according to City Hall.
"It's his legacy," Siegel said of Cuomo, who is rumored to be pursuing a 2020 presidential run. "He wants to appear to be a strong leader. He wants to be on the record and get national attention to show the global community that he's on top of this. But this is shallow and would not work."
"What stops [hate crimes] is trying to get the hearts and minds," Siegel added. "And we haven't done a good job of that."
