Guns

N.Y. Bill Would Violate Gun Rights, Free Speech Rights, and Privacy

Among other things, it would call for investigators to review three years' worth of a would-be gun buyer's social media postings for "excessive discriminatory content."

|The Volokh Conspiracy |

S1413, introduced yesterday by Sen. Kevin Parker (the former state Senate minority whip, before the Democrats took over the majority in the last election), would require that anyone who wants to get a handgun, rifle, or shotgun

consent to have his or her social media accounts reviewed and investigated pursuant to subdivision four of this section ….

Under subdivision 4, "[i]n order to ascertain whether any social media account" of the would-be buyer "presents any good cause for the denial" of the right to buy a gun, the government shall review the would-be buyer's "social media accounts for the previous three years" and

investigate [the would-be buyer's] posts related to

(i) excessive discriminatory content; or

(ii) content that is likely to incite or produce a violent action in or towards others.

For the purposes of this subdivision, "social media accounts" shall only include Facebook, Youtube, Gab, Twitter and Instagram and "excessive" shall mean more than one hundred posts.

"Discriminatory content" isn't defined, here or elsewhere, but presumably refers to speech that expresses negative views about various groups (or what else would it mean?). Presumably more than 100 posts in 3 years that criticize Muslims, or oppose bans on discrimination based on transgender status, or contain sexist jokes would qualify. What about "discriminatory content" towards Republicans? Towards Israel? Not clear.

It's also not clear what qualifies as "content that is likely to incite or produce a violent action in or towards others" (for which there's no 100-post "excessiveness" standard). Does this have to be a 51% likelihood, a threshold which would almost never be satisfied? Some possibility, which could be satisfied for a vast range of rhetoric? Again, not clear.

It is clear, of course, that such speech is generally constitutionally protected, whether it's "discriminatory content" ("excessive" or not) or speech that is "likely to incite" "violent action"; recall that the very narrow incitement exception to the First Amendment is satisfied only if the speech is (1) intended to produce (2) imminent illegal conduct, and (3) likely to produce such imminent legal conduct—item (ii) above doesn't include the intent or imminence requirements.

But remember: No-one is trying to take away your guns, or your freedom of speech.

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56 responses to “N.Y. Bill Would Violate Gun Rights, Free Speech Rights, and Privacy

  1. Maybe we need some sort of constitutional amendment that bars the election of those who repeatedly propose laws that are ruled unconstitutional. Over time this would hurt both parties enough that this is obviously a pipe dream, but then so are the ninth and tenth amendments.

    1. But it’s Ok, the senator’s heart is in the wrong place.

      Proposal: Amendment 28. If a law that grotesquely trods on the First Amendment is passed, then rejected by the Supreme Court, the proposers of such law shall have their little piggy toe humanely removed.

    2. How often has any one person proposed a law that actually got passed, and then was struck down?

      1. more than once, I mean

    3. I’d go one step further and include anyone who repeatedly voted for such a law since the herd needs culling at a much faster rate.

    4. Better idea. We need an amendment that proposing unconstitutional laws will be punishable by death. I’d love to see someone like Feinstein or Schumer convicted at trial for treason and hanged, wrapped in pork.

    5. That’s not enough. At the very least they need to be booted out of office, plus a perjury-equivalent penalty, for violating the oath.

  2. I like comparisons to the First Amendment, although that presumes Progressives actually like the First Amendment, which alas seems to be less and less true.

    I especially like comparisons to the right to abortions, which is not an enumerated right. Some enumeration by the Second Amendment comes in behind an unenumerated right.

    1. They only liked it when they assumed someone else would get to be the censor.

  3. So we troglodytes without social media accounts need not apply?
    I spend so much time at the range maintaining my expert rating I have no time for socialist reeducation apps.

    1. You must have an account and must regularly post approved messages. There are kind enough to limit the search to three years since what is approved will change.

  4. “It’s also not clear what qualifies as “content that is likely to incite or produce a violent action in or towards others”

    Retweeting the Gilette ad, obviously.

    1. Would not wearing gang colors or flashing gang signs count?

  5. “recall that the very narrow incitement exception to the First Amendment is satisfied only if the speech is (1) intended to produce (2) imminent illegal conduct”

    And that’s only for “advocacy of the use of force or of law violation”, it’s not clear that other speech falls under the exception.

  6. So, after this passes NY House and Senate votes and is signed into law by the Governor…

    1. The NY Senate will get busy applying the same process to people who want to register to vote.

      1. I’m actually okay with that. Let’s have the same restrictions on voting and abortion that we do on guns.

        Multiple ID’s, waiting periods, safety tests, background checks, government fees, multiple visits to complete one transaction, limits on how many/how often, age limits. It would be something that both liberal and conservative politicians could freak out over.

  7. A few weeks ago, the guy sponsoring this bill tweeted at a Republican communications director “kill yourself” after she caught him misusing his Senate parking placard.

    1. I wonder what he thinks the rest of us have on our social media.

    2. Saw an interview last week with the sponsor you bring up. When asked why he thought it was needed for law abiding people”?

      His answer; “Well, anyone can become violent without warning”.

      Obviously he was speaking from personal experience.

      1. Like the sponsor himself: Sen. Kevin Parker, a Democrat from Park Slope, Brooklyn. who is the Democratic conference whip. https://www.nysenate.gov/senators/kevin-s-parker
        From a press release calling for his expulsion from the Senate (12/21/18) https://www.scopeny.org/press-releases :
        In 2008, a female Senate aide accused the Senator of pushing her during an argument smashing her glasses. In 2010, Senator Parker had to be restrained by his colleagues during a profane tirade against Senator Diane Savino.

        In 2005 Senator Parker was arrested after punching a traffic agent over a traffic ticket he had been issued. In 2009, Senator Parker was charged with felony criminal mischief for attacking a New York Post photographer, the photographer’s finger was broken in that incident.

        I’ll bet he has a NYC carry permit….

        1. Sounds pretty civil for a New Yorker.

      2. Consider his race.

        1. ….a low IQ hispanic mezito? sarc/

      3. “We need to look for warnings because people can become violent without warning”

        And we elect these people to make laws

  8. I guess they call this a common-sense abridgment of the First and Second Amendments.

  9. “content that is likely to incite or produce a violent action in or towards others.”

    Such content is protected by the First Amendment, unless the harm is imminent. And speech posted on social media can’t pose an imminent threat unless it’s now possible to physically harm someone with a Tweet.

    And hurt feelings don’t constitute physical harm, regardless how sensitive a pussy you are.

    “…the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, ‘the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.'”

    – Brandenburg v. Ohio, 395 U.S. 444 (1969) at 447,448

  10. One alarming thing is that Sen. Parker probably thinks there could be little difference of opinion on what “discriminatory content” is and can’t fathom that there would be any question about if a particular post qualifies as such. My guess is that he surrounds himself with like minded people and doesn’t listen seriously to anyone else so it just doesn’t occur to him that there are alternate views.

    Of course, more alarming is that he thinks speech clearly protected by the First Amendment should have any impact on someone being allowed to exercise rights protected by the Second Amendment.

    That’s one thing nice about having a strong libertarian bent – very few people I meet in random life share my political views so I’m always exposed to alternate views and have to defend my views against those or, on occasion, change/alter my views in response to a good argument. I suppose I could hang around with Libertarians, but I’ve always found it somewhat boring to hang around with like-minded people (besides, some Libertarians are a bit nuts!).

  11. Suppose that the legislature passed such a law. It obviously couldn’t be enforced against private citizens, as doing so would discriminate based on speech content. But it might be enforcible against state employees, as it might be constitutionally permissible to require state employees to give up gun rights as a condition of employment.

    So if state employees attempted to enforce it, and in doing so posted about it on a state social media account, it would seem that if they attempted to target a private citizen in court, that citizen might be able to argue that the law applies to them and they have no right to a gun license.

    1. What about the speech as evidence rule?

      Why can not the applicant’s speech be used to determine if the applicant is a gangbanger?

  12. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    This is an infringement of the People’s right to keep and bear Arms.

    1. Every time.

      Advertising your own idiosyncratic and selective understanding of the Constitution is just an exercise in validating your own lack of humility.

      Careful, or your obsessive repetition will tip you over into Hihn levels.

      1. Are you saying that this is not an in infringement of the People’s right to keep and bear Arms?

        1. This? No, this looks as silly and badly conceived as Prof. Volokh says it is.

          But you and I both know this guy, and he’s not making a fact-based analysis. He posts his simplistic take on every gun thread.

          1. He should probably change his name, also. The second amendment wasn’t ratified until 1791.

          2. In this example, it was indeed a fact based analysis. A rather spartan one, but indeed still fact based.

            Now, to your point, is it helpful when he posts the same thing every gun thread? Not so much, but it doesn’t bother me at least.

            Let me ask then, by comparison, whenever a thread comes up about the Civil War and someone is making a nuanced and fact filled argument that slavery wasn’t the only cause of the conflict, and there is that one person who repeatedly just says slavery, slavery, slavery, would you get your feathers ruffled the same way?

            1. Um, there was no analysis at all, though. At least not from loveconstitution.

              For your analogy to work, someone would have to come into every Civil War thread with some source he’s misinterpreting, and that’s all he posts. That’s not the same as someone being stubborn or even facile in a debate about the facts.

              I’d also note that ‘slavery wasn’t the only cause of the conflict’ is not where Civil War debates seem to end up.

              Now, I do know some on the left who walk that rout, but that doesn’t mean this guy is any less annoying.

              1. The analysis is spartan, but there. It’s akin to someone telling me that they “love white chocolate”, and I say “white chocolate isn’t really chocolate,” then I’m doing the same level of analysis as lovecon did. Lovecon’s rejoinder was correct, though pedantic, as would be my rejoinder to the lover of “white” chocolate.

                Your experience of Civil War debates must be different than mine, because in my experience, in the end it always comes down to that one person saying “slavery=bad” as if that trumps everything else.

                Admittedly, he’s on “my side” so I find it less annoying, but lovecon is also wrong about his textual analysis of the 2nd Amendment, thinking that it protects tanks and such, and *that* is irksome.

    2. “You’re right, but analyze more, and you suck” – Sarcastr0

  13. Impeach Parker for hate speech against our Constitution.

  14. “For the purposes of this subdivision, “social media accounts” shall only include Facebook, Youtube, Gab, Twitter and Instagram…”

    “I CONSENT TO MAKING MY SOCIAL MEDIA PAGE PUBLIC FOR A PERIOD OF SIXTY DAYS.”; AND
    “I CERTIFY THAT NO CONTENT ON MY SOCIAL MEDIA PAGE HAS BEEN ALTERED OR REMOVED SIXTY DAYS PRIOR TO MY APPLICATION DATE AND SUCH CONTENT SHALL NOT BE ALTERED OR REMOVED UNTIL THE INVESTIGATION REQUIRED TO APPROVE THIS APPLICATION HAS BEEN COMPLETED.”

    Wow this is some scary stuff.

    You have to make your all of your private social media accounts public and Not delete or alter ANYTHING for 60 days prior to application

    How does this fit into the fourth amendment? This is the same as saying, if you want to buy a gun you must leave your home unlocked for 60 days.

    Finally, since it specifically names Facebook, YouTube, etc. Does that now make them a public utility?

  15. Sometimes an NICS check fails to uncover gang membership.

    If a social media check rrveals a picture if the spplucant wearing gang colors and flashing gang signs, the police could conclude thst the applicant is a gang member.

    Is not gang membership a basis for denying a permit?

    1. Which gang? D or R?

      1. The Crips, the Mafia, MS-13….

        1. LAPD, NYPD, CPD….

  16. The government of New York has now infringed on the 2nd amendment to the point that it is not afraid to trample the rest of the people’s rights. This has historically been the problem with state governments as shown by previous court cases involving incorporation of constitutional rights. These cases would never have been necessary if states had respected the tenth amendment.

    For those that say state restrictions are ok, the 10th amendment makes a pretty plain statement about rights reserved to the people:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

  17. When liberals say “discriminatory,” they only mean against their pet groups. That also applies to “hate speech” or “hate crimes.” They only apply to whites (as actors).

  18. We recoil in horror hearing China is building a citizen rating system, and if you displease the powers, it drops too low to get a loan or checking account. You know, the trappings communist complain about the rich giving the middle class bourgeois to give them a taste of the good life and buy their compliance?

    Good thing that can’t happen here in the US! Pay no attendion to threats from governors to banks to watch your reputation while doing constitutionally protected things lest your government reputation rating drop too low to get government contracts.

  19. I’m more than average bright, but have no idea what “excessive discrimnatory content” is. I strongly suspect that the prior sentence qualifies as such.

    I am so glad I no longer live in New York.

    1. You just engaged in excessively discriminatory content by saying that you are glad you no longer live in NY, what are you, some sort of geographical bigot? Only geographic-ophobes would decide to live in one location over another based upon what the government policies are.

  20. Poor Professor Volokh. He is forgetting that this is not playing in the clown show of the 9th, but in the criminal show of the 2nd.

  21. New York State Senate Bill S1413

    AN ACT to amend the penal law, in relation to requiring social media reviews prior to the approval of an application of a license to carry or possess a pistol or revolver; and to amend the penal law, in relation to requiring social media reviews prior to the delivery of a rifle or shotgun

    An application shall state the full name, date of birth, residence, present occupation of each person or individual signing the same, whether or not he or she is a citizen of the United States, whether or not he or she complies with each requirement for eligibility specified in subdivision one of this section, CONSENT TO HAVE HIS OR HER SOCIAL MEDIA ACCOUNTS REVIEWED AND INVESTIGATED PURSUANT TO SUBDIVISION FOUR OF THIS SECTION, and such other facts as may be required to show the good character, competency and integrity of each person or individual signing the application.

    In 2004 the Bureau of Justice Statistics interview of a large nationwide sample of state prison inmates found that over 88% of felons acquired weapons from non-commercial sources. I suspect that in New York with the Sullivan Act the gray and black markets are an even higher percentage of gun acquisition by criminals.
    \cont’d\

    1. \cont’d\
      Reviewing and investigating the social media accounts of legal gun purchasers is probably as big a waste of law enforcement resources as that ballistic fingerprint database New York State adopted and then dumped because it did not work. I will not hold my breath hoping for common sense on this one.

      FOR THE PURPOSES OF THIS SUBDIVISION, “SOCIAL MEDIA ACCOUNTS” SHALL ONLY INCLUDE FACEBOOK, YOUTUBE, GAB, TWITTER AND INSTAGRAM AND “EXCESSIVE” SHALL MEAN MORE THAN ONE HUNDRED POSTS.

      Don’t get a false sense of security. New York City turned a “free” rifle registration into a $140 permit to purchase with an additional $96 background check, and you may receive notices the authorities have declared your make and model an assault rifle so you have to get rid of it.

      Today Facebook, Twitter, Youtube, Instagram. Tomorrow, Disqus, Myspace and Pinterest!
      \cont’d\

      1. \cont’d\
        Why should I care?

        I don’t have a Facebook, Twitter, Gab or Instagram account and I don’t live in New York.

        I care because New York is the Empire State and statist imperialists like Schumer try to force their policies on the rest of the country.

        Besides, this proposal is
        (a) unconstitutional and
        (b) not an effective answer to criminal violence.
        Like most gun control policies.
        And maybe I don’t think New Yorkers deserve this either.

  22. Even if that wasn’t unconstitutional, it’s terrible policy. Anyone knowledgeable about hatred knows that truly despicable people are not posting on Facebook, or at least not in such explicit terms. Hate groups are so concerned about deplatforming at this point that they keep everything internal.

    1. The only true hate groups today are the ones doing the deplatforming, not suffering from it.

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