Judge Throws Out NY Online “Hate Speech” Law That Would Have Led To Closure Of Most Comment Sections
The law would have turned websites into speech police enforcing government views of “hate speech.” Jonathan Turley: “Albany has become a type of perpetual motion machine of unconstitutional excesses.”
Last year New York State passed a law combating “hate speech” that would have imposed severe burdens and risks on websites that maintain comment sections. It would have turned websites into speech police at risk of criminal and civil penalties from the government. As a practical matter, it would have forced websites that fall under the law (for-profit larger websites) to eliminate comment sections.
Needless to say, it was embraced and defended by NY Attorney General Letitia James, who has disgraced her office in the quest to destroy Orange Man Bad.
Eugene Volokh, UCLA law professor and founder of Volokh Conspiracy blog (now hosted at Reason), explained the dangers of the law in an Wall Street Journal Op-ed, New York State Wants to Conscript Me to Violate the Constitution:
New York politicians are slapping a badge on my chest. A law going into effect Saturday requires social-media networks, including any site that allows comments, to publish a plan for responding to alleged hate speech by users.
The law blog I run fits the bill, so the law will mandate that I post publicly my policy for responding to comments that “vilify, humiliate, or incite violence against a group” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It also requires that I give readers a way to complain about my blog’s content and obligates me to respond directly.
I don’t want to moderate such content and I don’t endorse the state’s definition of hate speech. I do sometimes delete comments, but I do it based on my own editorial judgment, not state command. Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.
Volokh, Rumble, and Locals, helped by the Foundation for Individual Rights and Expression (the FIRE), filed a lawsuit:
1. The State of New York has enacted a new law, slated to take effect December 3, 2022, with one goal: to silence disfavored—but constitutionally protected—expression. New York General Business Law Section 394-ccc ostensibly targets “hateful conduct,” but in reality, regulates protected online speech that someone, somewhere perceives to “vilify, humiliate, or incite violence against a group or class of persons” based on race, color, religion, or other protected categories (the “Online Hate Speech Law”).
2. New York’s Online Hate Speech Law, titled “Social media networks; hateful conduct prohibited,” hangs like the Sword of Damocles over a broad swath of online services (such as websites and apps), threatening to drop if they do not properly address speech that expresses certain state-disfavored viewpoints, as the state now mandates they must. In something of a First Amendment “double whammy,” the Online Hate Speech Law burdens the publication of disfavored but protected speech through unconstitutionally compelled speech—forcing online services to single out “hate speech” with a dedicated policy, a mandatory report & response mechanism, and obligatory direct replies to each report. If a service refuses, the law threatens New York Attorney General investigations, subpoenas, and daily fines of $1,000 per violation.
3. There can be no reasonable doubt New York will enforce the Online Hate Speech Law to strong-arm online services into censoring protected speech. The Attorney General’s intentions, in fact, could not be clearer; as recited, for example, in an October press release, the Attorney General declared that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.” Press Release, Office of the New York State Attorney General, Attorney General James and Governor Hochul Release Report on the Role of Online Platforms in the Buffalo Shooting (Oct. 18, 2022), https://ag.ny.gov/press-release/2022/attorney-general-jamesand-governor-hochul-release-report-role-online-platforms [https://perma.cc/L5VP-3EMN].
Legal Insurrection Foundation considered being a plaintiff, but since we are a non-profit we would not have been covered by the law. Otherwise we would have been honored to be a plaintiff against this piece-of-garbage censorship law.
I was quoted in The Daily Caller about the law and lawsuit:
Bill Jacobson, founder of Legal Insurrection, told the DCNF that it is “extremely troublesome” that James will be in charge of enforcing the law as he said she is “an extremely politically driven person.”
“When she ran for [office], she announced that her primary goal was to get Donald Trump,” he said. “So it is not hard to imagine that a department run by someone who’s goal in life is to get Donald Trump will deem speech favoring Donald Trump to be hate speech.” ….
Jacobson also told the DCNF that the law is unconstitutional and “essentially a censorship law.”
“Hate speech can be very subjective. What one person considers hate speech, another person may not,” he said. “So it really is imposing on websites an obligation to act as an enforcement arm of the government, and that’s where I think it runs into constitutional problems.”
Diaz told the DCNF he expects the court will hear oral arguments early in 2023.
“‘I think this is a horrible law,” Jacobson said. “It’s ill conceived and it is, in my view, unconstitutional.”
A federal judge just threw out the law. The FIRE reported on its victory:
On Tuesday, a federal court halted enforcement of a misguided New York law that forces websites and apps to address online speech that someone, somewhere, finds humiliating or vilifying. The court ruling means that New York cannot legally force blogs and other internet platforms to adopt its preferred definition of hate speech or be drafted into New York’s “speech police.” …
In issuing the preliminary injunction, Judge Andrew Carter of the Southern District of New York explained that the law unconstitutionally requires social media networks to disseminate the state’s message about the definition of hate speech, “a fraught and heavily debated topic.” Regulation of hate speech is “particularly onerous for Plaintiffs, whose websites ‘have dedicated pro-free speech purpose[s].’” Because the law “is clearly aimed at regulating speech,” Judge Carter ruled, it “chills the constitutionally protected speech of social media users” in violation of the First Amendment.
Judge Carter also recognized that the law’s vague terms, such as “vilify” and “humiliate,” chill protected speech: “For example, could a post using the hashtag ‘BlackLivesMatter’ or ‘BlueLivesMatter’ be considered ‘hateful conduct’ under the law? Likewise, could social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group based on national origin?” Such a chilling effect is unacceptable “[i]n the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant.”
From the Order:
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.
Jonathan Turley notes that NY government is out of control in its attempt to censor people:
There is a major victory for free speech in the United States District Court for the Southern District of New York where Judge Andrew Carter Jr. has enjoined a New York Hate Speech law regulating social media. In Volokh v. James, Judge Carter granted a preliminary injunction on the basis that “the Hateful Conduct Law” is blatantly unconstitutional, which it most certainly is. It is only the latest law passed by the New York legislature that was quickly enjoined by the federal courts. Albany has become a type of perpetual motion machine of unconstitutional excesses.
Expect more censorship laws under pressure from the EU:
A top European Union bureaucrat on Tuesday predicted that laws prohibiting so-called hate speech, which have already been implemented across Europe, will soon be imposed in the United States.
“Illegal hate speech, which you will have soon also in the U.S. I think that we have a strong reason why we have this in the criminal law,” Věra Jourová, vice president for values and transparency at the European Commission, said at the World Economic Forum. The European Commission is the executive arm of the EU.
European Commission VP Věra Jourová at the WEF:
"Illegal hate speech, which you will have soon also in the U.S. I think that we have a strong reason why we have this in the criminal law." pic.twitter.com/iLR1MePTYT
— Washington Free Beacon (@FreeBeacon) January 17, 2023
New York State government is out of control at every level, but particularly at the Attorney General’s Office.
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to the full extent allowed by law.
As JD Vance said, these are unserious people who are worried about fake problems. That is why they are so dangerous.
Thankfully, the law can still recognize that free expression cannot be banned by unserious people who are worried about fake problems.
NY is insane. On the path to ruin. Self-inflicted. Progress in the 21st Century. Go figure.
These people are actually quite serious. That is, they are seriously working to curtail individual liberties and freedoms.
Still & again: If you or I aggressively deprived another citizen their civil rights, the federal DOJ would bring the pain and criminally prosecute us.
If Albany is a “perpetual motion machine of unconstitutional excesses” to deprive citizens’ express civil rights as enumerated by the US Constitution these politicos took an oath to uphold, then ‘qualified immunity’ has become a shield of bvllsh!t politicos hide behind to impose all manner of abuse against citizens.
Until the federal DOJ brings the pain and criminally prosecutes these aggressive deprivations of citizens’ civil rights it’s all just **clown world.**.
I don’t think there are any circumstances under which state legislators can be held liable, let alone convicted of a crime, for how they vote on a proposed law, no matter how unconstitutional it is. Not even in federal court.
And(actually agreeing this time) we shouldn’t want them to be. The moment the feds are able to prosecute state legislators for their votes on state laws is the moment we have Biden’s DOJ trying to prosecute a legislator for voting for a heartbeat law, for example.
Did the Founder’s writings inform We, the People how to react if tyranny rears its vile ugly head and takes control of the political system? If the embedded systems can not curtail the enemies of freedom is it time to consider the appropriate judicious application of musketry?
The most relevant document was the Declaration of Independence itself.
You or I can be criminally prosecuted for aggressively depriving another their civil rights, but there is a priviliged class of people who cannot simply because they won a popularity contest? That is a recipe for tyranny. Oh, look. It’s already here.
Change the laws now, and the political landscape changes with it. Because it will be too late from behind the barred wire of internment camps…
Legislators are not depriving anyone of anything. They are debating and passing laws, and the other branches of government have no right to question them for it.
As far as US congressmen are concerned, their immunity is in the goddamn constitution, so you can’t change the laws, not without the consent of two thirds of both houses plus 38 state legislatures. State legislators have the same immunity in their respective states. They may not have the same explicit immunity in federal courts, but the same principle applies, and it’s offensive to bring such charges against them.
The woke voters of NY deserve the woke laws enacted by the woke elected legislators. Those taxpayers need to pay for world class oppression.
There are more people living in the districts of NY City, Buffalo, Syracuse, Rochester and Albany than in all combined districts in 62 counties. They also compromise the majority of all Democrats in a state which pushes government rule via entitlement programs. It’s near impossible to get a Republican majority when the demographics of these areas are being supported by government. Why NY State is just a smaller version of Calif.
They never stop the clown show
All AA hires, not a brain between all
Don’t confuse evil with dumb.
Letitia is currently taking down the NRA — something other pols have been trying and failing at for decades. Of course, it’s the NRA’s own damn fault for embezzling from its members.
The biggest money maker for the NRA was their legal insurance for gun owners business.
James decided that insurance was violating a NYS law prohibiting insurance for unlawful acts.
You know, I know, everybody knows, the subject acts were not “unlawful” until a jury so decides, so insuring an attorney for the trial before that jury was not the target of the law.
But no judge agreed.
Something like that happened here in NJ.
Companies were selling legal insurance for gun owners; Democrat Governor Murphy declared such insurance “murder insurance” and by executive order terminated all policies.
But after Bruen, as one of many elements of the new law to make concealed carry unlawful and unaffordable, ALL concealed carriers were required to get $100,000 of liability insurance.
No judge has enjoined that.
Executive orders are not laws.
Seems like a tortuous interference claim, to me.
(Is that the right spelling?)
Letitia looks in that photo like she is posing for her statue—so a newer, saner generation of New Yorkers will have something to tear down in disgust.
“Illegal hate speech, which you will have soon also in the U.S. I think that we have a strong reason why we have this in the criminal law,”
Do you have to take out the verbs and the meaning to stay legal as well?
Jourova is a dangerous fascist b* we’ve run into before.
Big tech is doing their work for them. Google will use the “comment section is hateful” game to shut off ad revenue.
They did this to Weasel Zippers a few weeks back.
And yet there are commenters right here who are calling for essentially the same thing. When you demand that § 230 protections be removed and providers become liable for what other people write on their sites, merely because they delete content they find offensive, you are calling for exactly this.
What people want is that they pick one or the other and be a carrier OR a publisher and not get to pick off the menu of the best of both worlds.
^^^THIS THIS THIS^^^
Yeah, that. There are plenty of commenters (sic) hereabouts who have said exactly that repeatedly, and been misrepresented, consistently.
— Exercise editorial judgment, you’re *acting as* a publisher, with publishers’ liabilities.
— Don’t, you’re not, and clear of publishers’ liabilities, while still subject to carriers’ liabilities.
— People who produce stuff are themselves liable for what they, themselves do.
Section 230 seems sloppy, as it can look like it says exactly that above if you tilt your head and squint right. BUT, in practice it’s not getting that result, because motivated people are tilting their heads and squinting a different way to claim it says something else. So clean it up.
No, you have not been misrepresented. You are demanding something that is illogical, unconstitutional, plain wrong, and that would shut LI down.
“Carrier” and “publisher” are not the choices. Section 230 is not at all sloppy. It was the result of a wrong, twisted, and destructive court decision that said if you moderate content you somehow magically become a publisher and become responsible for everything other people write on your site. That is an impossible standard, and it is in fact unconstitutional. The decision that prompted it would eventually have been overturned. And if section 230 is repealed the courts will eventually restore it anyway. But the damage will be done. All sites hosting user-provided content will have to shut down and many of them will not be able to come back.
No, those are not the choices, and it is unconstitutional for you to make those the choices. Doing so would force every provider that carries user-supplied content such as this one to shut down. That is what you want. You want to shut LI down.
Yes, I certainly do, but right now I’m too busy killing my grandma with COVID.
What we want is quite explicable in words of six letters or less. Don’t tell us it can’t be done. If §230 is too effed up to do the job, scrap it and start over.
It may be explicable, but it is wrong, and offensive to the constitution. A site such as this one, that hosts user-provided content, and has moderators who delete offensive content when and as they come across it, is not a publisher, and calling it one is nothing but a damned lie. If you call it a publisher for doing that you are a liar. And Congress has no power to deem it a publisher for doing that, because it’s contrary to the facts. And it is unconstitutional to hold a non-publisher to a publisher’s standards.
LI is a publisher. And it is liable for what it publishes. Its comment section could be construed as outside of what it publishes, and liability for comments would be held by the commenter.
If LI was a facebook or twitter clone, and asserted it was a platform, and moderated according to a political viewpoint, I’d argue that makes it fall into the “publisher” category.
I know nothing is “obvious”, but moderating comments is possible without imposing a political point of view.
I guess in the end, it seems that if publishers/platforms want to avoid liability, they should simply let the commenter hold that burden. If someone violates actual, prosecutable law in the comment section, leave it up as proof for the authorities, and let the authorities prosecute it. Exceptions for “obvious” spam, porn, etc, can be done without political persecution of one side or another.
It’s not offensive to the constitution it[s orthogonal to the constitution. I’m totally onboard with “muh private corporation” provided that that corporation 1) does not serve as an arm of any government; 2) does not receive any protections from government that every other person in the country doesn’t also receive; 3) is subject to the same libel laws as you and I; 4) receives all due first amendment benefits from persecution by the government.
No, when companies start censoring content they should lose 230 protections. Not the other way around.
That’s bullshit. The whole point of section 230 is to protect them against just such a twisted immoral dictate.
No, we’re asking them to FOLLOW section 230 as written. Publishers can decide what to publish; carriers can’t.
You understand this; you simply choose to pretend you don’t. Liar.
YOU are the damned liar here. You have probably never even read section 230, and you certainly haven’t understood it.
The moment you mention the word “carrier” you lose, because section 230 doesn’t even mention carriers. Nobody has ever claimed that these providers are common carriers or should be treated as such. Anyone who claims that that is what section 230 does is a liar.
These services, including this one, have to be able to decide what to host. They have to be able to delete offensive content. They can’t exist otherwise. Legal Insurrection certainly does so, and would have to shut down if it couldn’t.
I do understand this. You clearly don’t.
Section 230 makes it clear that services like LI have the legal status of distributors. Such as bookstores. And bookstores do decide what to carry. They have the absolute right to do so, which no legislature or court can take away, and no legislature or court can hold them liable for books they carry, without first proving that they knew the books’ contents were illegal. That is what section 230 does for services like LI, and it’s what the first amendment requires.
Gonna disagree on that, most of us are calling for a simple choice of the platform curate and moderate posts or do not. Where these platforms offer themselves up as a neutral virtual public square then they are not responsible for the comments of the posts. Where they instead curate and moderate the posts not out of legal burden but out of ideological preference they should be liable for harms caused by unmoderated posts and for harms created by falsely curated posts; untrue info not taken down and true information taken down.
In essence they can seek to invoke the protection of Sec 230 when they also do not choose to curate and moderate posts. Once they begin duration and moderation of content they should lose that protection, which was put in place to remove the burden of curating and moderation of posts.
Sec 230 worked just fine until the ideological games began. See the incensed reaction to Musk buying Twitter and moving the platform back towards it’s original orientation as a neutral platform. The ideologues are enraged b/c Twitter is no longer putting an ideological thumb on the scale.
I know what you’re calling for, and you can’t have that. Not moderating posts is not an option. No such platform can run without moderation.
And when you claim that section 230 was supposed to protect platforms only when they did not moderate, you are simply lying your heads off, because it explicitly says the opposite, and the whole point was the opposite.
That is an immoral and unconstitutional standard. And it’s the standard that this NY law wanted to impose, which would have shut LI down.
That’s a contradiction in terms, since if they choose not to do so then they wouldn’t need any protection.
That is the exact opposite of the truth. It was put in place specifically to impose such a burden, as well as allow it. When the Supreme Court struck down the mandate requiring moderation, it left alone the part allowing it, as indeed it had to because that part was constitutionally required anyway.
There is a distinction between illegal and offensive. No serious person is arguing that public platforms can’t take down child porn. Nor am I arguing that a non public platform with restricted access like a private club, should not be allowed to set its rules.
The fundamental difference between our view seems to turn on what is a public space and whether the owner of that space, public or private, may engage in viewpoint discrimination.
IMO, these platforms are not utilities but more like a shopping mall. Where that mall allows leaflets to be handed out then they need to allow everyone the same opportunity to hand out leaflets.
The simplest course would be to treat a public area, physical or digital, as an area open to free speech. Where a privately owned area open to the general public allows speech then they don’t get to pick what speech, IMO. This is especially so for platforms that hold themselves out as community communication providers. That simple stance eliminates the wrangling and provides clarity.
Regarding this law, how is ‘conducts business in this state’ defined? Would it apply to a for profit Florida based blog with potential customers in New York for instance?
Wouldn’t it tend to drive social media businesses out of New York to protect themselves?
I’m sure they’re using the old 1990’s “Internet pornography” definition here. If Guido in Mamaroneck is viewing your crap on the computer in his momma’s basement, you’re “doing business” in their state.
I disagree with the judge. There was nothing well intentioned about this. Letitia is just another woke SJW progressive on a crusade using government money to do it.
It depends how you define “well-intentioned.” In the NY Judiciary’s legal dictionary, “well-intentioned” includes, but is not limited to, “progressives on a crusade using government money to do it.”
“New York State government is out of control at every level, but particularly at the Attorney General’s Office.”
Depends on your definition of “out of control”.
The AG was just re-elected, as was the Governor.
This is what the People want.
You nailed it, Mr. Natoli!
They’re getting EXACTLY what they voted for. A state who’s infrastructure is falling apart while the powers that be spend time and money chasing after Trump for imagined slights. James and Hochul deserve each other. I feel for the good people in NY such as the Professor. They have to live In a state governed by these buffoons.
Hate is pretty much always defined as being amused by cognitive dissonance on the left.
The New York State government and bureacracries are very woke and are the Deep State in their zeal to regulate everything possible under the sun
Those two gentleman pictured in James’s radiance look as though they are dutifully attending the funeral of an ancient grandaunt. What a mockery wokeism has made of our institutions.
From the Order:
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media,
Umm… Well intentioned? No… Just no. There are no good intentions about this at all. That the judge would state this is in itrself worrisome.
Just about sums it up, New York State, a cesspool of unconstitutional regulation..
And when you contrast NYS with Florida, vis a vis how much it costs Florida to run a state with a higher population than NYS you have to wonder what the Heck is going on in NYS.
“Albany has become a type of perpetual motion machine of unconstitutional excesses.”
So, will the US gov’t finally act on their constitutional duties, then?* Seems the “republican form of government” clause would require the state gov’t be dissolved based on their constant un-constitutional actions.
(* yeah, me neither.)
No, it wouldn’t.
First of all the Republican Guarantee clause is not justiciable.
Second, a republican form of government has nothing to do with what you’re talking about. All it means is that you have a democratically elected legislature and executive that govern the state between them, and an independent judiciary to keep them in check. Rhode Island in the early 1840s didn’t have that. NY and CA certainly do have it.
To a Leftist, “You are wrong!” is hate speech and “You might be mistaken.” is probably dangerously close to crossing the line into hate speech.
New York continues to pass obviously unconstitutional laws–I’m assuming that they just think if they do that, eventually, they will wear everyone down. No serious attorney would approve of the anti-speech and gun laws New York continues to roll out
Regarding the above, New York’s continued enactment of unconstitutional law, one wonders as to, while this goes on, where oh where are The Feds, as in Federal Courts.
Where they should be, striking these laws down as and when they are challenged, after giving them due consideration. What else would you expect?
Regarding speech that I might find offensive, annoying or nonsensical, there is quite a bit that could be so characterized, I could be upset by it, which could ruin my dinner, or choose to the ignore it and the speaker, seemingly the wiser approach.
What does strike me as questionable is the following. There are supposed news sites on the internet that seem to lack provision for reader comment or question. I have long thought public comment to be a two way street. Seemingly not everyone agrees, sad to note.
Why should they make such provision, if they don’t want to? Are you suggesting they should be legally forced to?! That would definitely be unconstitutional.
Many sites, such a LI, do make such provisions, because they attract readers. That’s the point of “Web 2.0”. You get your readers to be unpaid content providers, and you market their work and at least in principle make money from it, all with their consent. Win win. But it’s always the site’s choice whether to allow this. And laws such as this one, or such as the ones many commenters here would like, would make such sections impossible and force all sites to shut them down.
I find the vast majority of those sites to be blue in nature, and am not surprised in the least about it.
When a red site doesn’t allow comments, I have found they are quite straightforward about posting the reason why, and that reason invariably involves threats of lawsuits or deplatforming coming from blue entities.
New York is described as The Empire State. How, one wonders, is The Emperor determined?
Milhouse explains the First Amendment issue quite well. The only thing we would add is that a site can be both publisher and forum. Jacobson is responsible for the content of his posts. He is not responsible for comments to the forum (with some narrow exceptions). Commenters, however, are responsible for what they post. In other words, each of us are responsible for our own words, but not those of others.
Holy crap, I’m agreeing with the Emperor Ming! Planet check!
What I find most disagreeable about the current state of affairs is the continual legal collective fiction that insists on making the publisher/carrier/forum owner responsible for the comments of his commenters. This is the “bad weld” that leads to the failure of any legal superstructure built upon it. And it is by design.