Governor Cuomo

Gov. Andrew Cuomo is proposing that New York’s hate crimes law be amended to add inciting to riot and rioting to the list of offenses that are punishable as a hate crime when rioting is directed at a protected class—such as a racial or ethnic group—following the protests in Charlottesville, Virginia, this weekend that left one civilian and two state troopers dead and a score injured.

Under Cuomo’s proposal, the penalties for engaging in rioting would be increased from a Class E felony to a Class D felony. Inciting to riot would also be increased from a Class A misdemeanor to a Class E felony.

“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 said in a statement. “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. New York is one community and one family, and we will never stop fighting to ensure the safety and equal treatment of all New Yorkers.”

In addition, Cuomo is also asking the Legislature to amend the state’s Human Rights Law to add public schools, so that the Division of Human Rights could investigate allegations of bullying, harassment and discrimination by students.

A 2012 decision by the state’s Court of Appeals found that public schools are not covered under the definition of Human Rights Law that allows the state to investigate reports of bullying, harassment or discrimination.

Since the legislative session isn’t scheduled to return to Albany until January 2018, a spokesman for Cuomo said that the proposals are to engage both houses of the Legislature for action when they return next year.

According to two law professors, Cuomo’s proposals don’t raise any questions over free speech or the right to assemble.

Fordham University School of Law professor Abner Greene noted that if the state were trying to regulate hateful, racist speech it would raise First Amendment questions. But trying to regulate violence motivated by racism by adding harsher sentences, does not raise a First Amendment problem, he said, citing the 1993 Supreme Court decision in Wisconsin v. Mitchell, which held that enhanced penalties for racially motivated crimes doesn’t violate First Amendment rights.

While Sulzbacher Professor of Law at Columbia Law School and chair of the board of directors of the Center for Constitutional Rights, Katherine Franke, agrees that “on its face” Cuomo’s proposal appears constitutional, her “bigger concern” is how the proposal would be applied, and whether the language used to draft the proposals ends up being used against communities of color with greater frequency than against white communities.

“It’s an easy gesture on the governor’s part,” Franke said. “The harder, longer work is something that can’t be solved in a press release.”

The killing of a legal assistant and injuries to more than a dozen others allegedly caused by James Alex Fields Jr. of Ohio, a participant in a white supremacist rally in Virginia this weekend, has sparked calls for the 20-year-old to face charges of domestic terrorism and hate crimes.

Video footage shows Fields allegedly driving his car into a group of counter-protesters and then quickly reversing, killing Heather Heyer of Charlottesville. Fields was denied bail in general district court in Charlottesville on Monday after being charged under state law with one count of murder, three counts of malicious wounding and one count of hit-and-run. U.S. Attorney General Jeff Sessions said that the U.S. Department of Justice would open a civil rights investigation into the events at Charlottesville. But prosecuting Fields for hate crimes may be particularly difficult, legal experts said.