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.
New York State government is out of control at every level, but particularly at the Attorney General’s Office.
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