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Free Speech

N.Y. State Bill to Ban "Hate Speech" from Social Media

"Hate speech" would be defined as an intentional "insulting statement about a group of persons because of race, ethnicity, nationality, religion or beliefs, sexual orientation, gender identity or physical, mental or intellectual disability."

|The Volokh Conspiracy |

The bill (S. 7275) was proposed in January by state senator David Carlucci, but I just came across it:

1. As used in this section, the following terms shall have the following meanings:

(a) "hate speech" means a public expression, either verbally, in writing or through images, which intentionally makes an insulting statement about a group of persons because of race, ethnicity, nationality, religion or beliefs, sexual orientation, gender identity or physical, mental or intellectual disability….

3. (a) The provider of a social media network shall maintain an effective and transparent procedure for handling complaints about hate speech content in accordance with this subdivision….

(b) Such procedure shall ensure that the provider of the social media network:

(i) takes immediate note of the complaint and checks whether the content reported in the complaint is hate speech and subject to removal or whether access to the content must be blocked;

(ii) removes or blocks access to content that is hate speech within twenty-four hours of receiving the complaint; this shall not apply if the social media network has reached agreement with the competent law enforcement authority on a longer period for deleting or blocking any hate speech content;

(iii) removes or blocks access to all hate speech content immediately, this generally being within seven days of receiving the complaint; the seven day time limit may be exceeded if the decision regarding the hatefulness of the content is dependent on the falsity of a factual allegation or is clearly dependent on other factual circumstances; in such cases, the social media network can give the user an opportunity to respond to the complaint before the decision is rendered; and

(iv) immediately notifies the person submitting the complaint and the user about any decision, while also providing reasons for its decision….

5. (a) The attorney general may bring an action against a provider that violates the provisions of this section:

(i) to enjoin further violation of the provisions of this section; and

(ii) to recover up to one million dollars for any violation of this section, including any offense not committed in this state [or up to three million dollars {where the defendant has been found to have engaged in a pattern and practice of violating the provisions of this section}….

As best I can tell, the bill doesn't seem to be going anywhere, but it struck me as noteworthy that Sen. Carlucci submitted it.

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64 responses to “N.Y. State Bill to Ban "Hate Speech" from Social Media

  1. Yeah, beat this proposal with a baseball bat and set in fire.

    Curious though…why is it noteworthy that Sen. Carlucci submitted it?

    1. Funny how bad law and bad law enforcement breed contempt for the law.

    2. apedad: Well, I think that the bills a legislator backs should contribute to the legislator’s reputation, positive or negative. Also, some of our readers may know more about state legislators than I do, and might be able to draw useful connections that others wouldn’t know about.

      1. Sure, but you made it sound like it was noteworthy that this particular legislator proposed the bill, e.g. because he proposed similar bills or dissimilar bills in the past or had otherwise publicly expressed his views on the subject matter before.

      2. Perhaps it’s noteworthy because he did run for the US House in District 17 and came in third in the primary. Not sure whether this bill helped or hurt his campaign.

      3. New York state legislators are generally moronic losers. They can be divided into two categories: our moronic losers and their moronic losers. (Or, as Everett Dirksen would, stupid moronic losers and evil moronic losers.) There really isn’t anything more you need to know, or would want to know, or even could know, about any particular moronic loser.

    3. Why noteworthy?

      Mentioning this going-nowhere proposal from a single, nondescript, state-level Democrat in New York might consume a bit of attention that might otherwise be directed toward other expression-related activity, such Bill Barr’s encryption crusade, the Trump family’s adventures in prior restraint, and the like.

      1. Hey Rev,

        If you feel this strongly, you’re free to start your own blog about it. Free country and all.

        1. Except NY, apparently.

        2. “If you feel this strongly, you’re free to start your own blog about it. Free country and all.”

          Gah, can you imagine the possibilities of an AK blog? One entry, re-posted ad infinitum. Certainly save him time and energy.

          1. You guys prefer a blog that consists largely of four or five predictable strains of liberal-bashing, repackaged and posted repeatedly (periodically leavened by Prof. Somin’s libertarian content)?

            1. Prefer over your one-note insult laden tirades? Absolutely!

      2. Kamala Harris won the “punish the social media companies” debate by leaving the others talking about merely repealing 230 or breaking them up, into directly punishing them.

        She is on Biden’s short list.

        Biden might very well not complete his term.

        We will have a president calling for first amendment violating punishments.

        That guy may be some rando state-level Democrat, but this is hardly a local crank-level serious problem.

        1. We can increase online diversity of expression by only exempting websites who don’t pick and choose which comments to publish from 230. Hard to see a problem with that.

          1. Yeah, no problem at all, except for shutting down the press freedom of private publishers.

          2. TP — Yeah, no problem at all, except for shutting down the press freedom of private publishers.

        2. “Biden might very well not complete his term.”
          Are you kidding me?
          The article 25 papers will be in the purse of the Vice-President during the inauguration! There will never be a question of him not being capable of carrying out the office, he can’t carry out the garbage.
          Fun fact: If the dems win the Presidency, they will probably have also won the Senate and kept the house. That will set them up to pass a law designating the DNC as the ‘other body’ to determine presidential competency.
          Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

          1. Sounds like Republicans need to dump Trump and get a candidate who could win.

            1. Perhaps they are waiting to see if Biden picks Warren as running mate.

              If Warren is Biden’s running mate (which I doubt will be the case), then there would be no need to pick another GOP candidate as Trump/Pence would just drive a cleaver between Biden and Warren by asking questions like:

              Senator Warren, you disagreed strongly with Senator Biden during the primary debates on a number of progressive proposals with great impact on the day to day lives of typical Americans. For example, you were in favor of banning all traditional private health insurance, including employer supplied and Union negotiated plans, while Senator Biden was completely against that. If, god forbid, President Biden were unable to complete his first term and you must complete it, would you strive to follow President Biden’s course or would you substitute your “book of plans”?

              There is, of course, no good answer to this. If Warren says “I’ll follow Biden’s lead” she will have turned against the progressive wing and lack of turnout from young progressives would sink Biden. If Warren says “I’ll dust off my book of plans and push for Congress to instituted them”, Trump is then running against Warren and can easily win. Trump’s ads would focus on the health of “Sleepy Joe” and the high chance that Warren would be President and point out her nutty ideas.

              If, on the other hand, Biden picks a running mate that won’t drag him down with moderate voters or tank turnout by unreliable liberal/progressive voters, Trump can “decide” to focus on “Spending more time with my son, Barron” and let Pence take his place at the top of the ticket. Trump hates losing so having an excuse to withdraw may be more palatable to him (offset, perhaps, by losing whatever executive privilege he now enjoys). Pence can then run as:

              “I was a moderating factor in the Administration but, ultimately, since Trump was elected everything was his call and I, as VP, felt I should not derail the voter’s choice. However I believe a number of things should have been handled differently and would have done so if I had been President.

              Biden v. Pence would probably be a Pence win if Pence ran a decent campaign as the unlikely “Anybody but Trump” voters would be less likely to show up and moderates would not have to hold their nose and vote for Biden as there would then be a non-embarrassing option: Pence.

  2. “(a) “hate speech” means a public expression, either verbally, in writing or through images, which intentionally makes an insulting statement about a group of persons because of… religion or beliefs…”

    So if I said something insulting about a person who believes that Democratic Progressivism is the best, that’d be hate speech?

    1. I suspect all socialists would be haters; socialism cannot tolerate individualism, let alone simulate it, but individualism can simulate socialism with contracts. Heck, all political talk would fall afoul, and Thanksgiving dinners might as well be called Hating dinners.

      1. But, it being New York, the socialists get to decide what is hate speech, and what is not. Wanna bet how that’ll turn out?

      2. might as well be called Hating dinners

        Maybe we cold condense it down to, say, two minutes every morning. Just to get it out of our systems so we can go about our day happy and productive.

    2. Noteworthy that it also included “images.” So I share a devastatingly funny meme that happens to gore someone’s ox, that’s a hate crime under this bill.

      Say goodbye to dank memes if this ever passed in New York.

    3. It’s an interesting question since apparently calling an NRA member a baby killer or one of the many other epithets that get tossed that way would also be hate speech. Also, quoting certain religious passages from any of the typical major canons would likely run afoul of the law.

      But as you point out, it will come down to who does the deciding since in reality the law itself is insulting to people who believe in the First Amendment.

  3. Pretty concerning that legislators are proposing garbage like this willy-nilly.

    Left-leaning jurists of older generations (whatever one’s disagreements may be) are firmly wedded to the Supreme Court’s free speech jurisprudence.

    But those currently in law school, i fear, would have no qualms with reading ‘hate speech’ exceptions into the First Amendment.

    1. “Left-leaning jurists of older generations (whatever one’s disagreements may be) are firmly wedded to the Supreme Court’s free speech jurisprudence.”

      Well, you know, except for the part that protects political speech from attack through “campaign finance” laws; That they’re down with reversing.

      1. What does that even mean?

        1. I think Brett is referring to Citizens United v. FEC (5-4 along right/left lines).

        2. As apedad says, Citizens United. Especially the part in oral arguments where SG Verrilli claimed the government could (in principle) ban pamphlets if any money had been spent to produce them. Of course he also said they planned to forbear doing that. They just wanted to reserve the power in case they needed it.

          Contrary to popular belief, it did not turn on whether corporations were people. The government’s (and the dissent) argument was that spending money was not speech and could therefore be forbidden. Which led to the discussion of spending a few pennies for paper to produce a pamphlet.

          1. Yes, Citizens United. The ACLU was an amicus in favor of CU, the case was actually a great victory of their’s in favor of freedom of speech.

            Such a great victory they were forced to purge their BOD, and put a guy who’d mapped out how to reverse it in charge of their litigation strategy. That was the case that broke the ACLU’s principled stance on the 1st amendment, it so outraged the left.

            But the left are still on board for freedom of speech so long as you’re not saying anything they object to.

            1. And as long as you’re not criticizing blacks, Muslims, or homosexuals.

              1. No, you can do that, it depends on which blacks, Muslims, or homosexuals you’re criticizing. Candice Owens, or Milo, you’re good.

                1. Good point!

                2. And don’t forget Justice Thomas who is, according to progressives infesting some popular radical left wing web sites, “self loathing” because he apparently doesn’t “think like like a black man should”.

        3. What does that even mean?

          If you don’t get the obvious reference I’d say that you’re wasting your time on a blog centered on constitutional law.

            1. I’d say that anyone who doesn’t already know about a case as significant as CU doesn’t really care about CL.

    2. “But those currently in law school, i fear, would have no qualms with reading ‘hate speech’ exceptions into the First Amendment.”

      Sad but true. It’s really kinda scary.

      1. Makes one wonder the value of law schools these days.

  4. It’s interesting that this doesn’t have an exception for hate speech against whites, males, Christians, straight people, or Americans. Seems if it has the force of law, someone could kill the progressive movement by just reporting every single “kill all men” or “men are trash” post on twitter, and suing twitter if they aren’t all blocked/deleted within seven days. There isn’t a joke exception in the law after all.

    1. That said. I’m not sure how New York can pass a law about what people outside their borders do. Unless the company is based in New York or the servers were hosted there of course, but even then, they really could only regulate the data being hosted on those specific servers.

      1. Wouldn’t this be a violation of the commerce clause?

        1. That’s what I would think.

        2. The Dormant Commerce Clause or the actual Commerce Clause?

      2. NY and NYC seem to have the impression that they can regulate at least what their own citizens do outside their borders. I’m not sure their convictions about the reach of their laws stop there.

    2. because of race, ethnicity, nationality, religion or beliefs, sexual orientation, gender identity or physical, mental or intellectual disability

      Did you even try to read it?

      1. Well heck, I seem to be the one who didn’t read very well. Sorry, one too many negatives and I should know better than to comment before waking up.

      2. So they can’t call Republican’s stupid anymore?

  5. I have the same wuestion as apedad, why is Carlucci noteworthy? This bill looks like, were it made law, unenforceable & likely unconstitutional. Also, as user accounts for so-called hate speech may fall outside NY borders, beyong the enforcement issue, the bill or law is simply ignorant. I find this to be typical of legislators, sadly, arrogant & none too bright. Although, perhaps that’s the human condition.

    1. Well, the man is so unnoticed, this will probably be on the first page of Google results come election time. I might be overly optimistic, but at least a meaningful fraction of voters google their candidates before voting. I would hope that anyone who sees that their representative wants to eliminate the first amendment would be angry and vote against him.

  6. This lack of edit feature is miserable. Question, not wuestion. Carlucci looks to be a typical young, entitled Westchester county asshat. Does provide the answer as to why his ‘hate speech’ target groups are not the same groups protected from discrimination under federal equal opportunity laws.

  7. Other than the money that gets paid to staff counsel, proposing symbolic, virtue-signaling, unenforceable and unconstitutional laws costs nothing. Every year thousands of bills get proposed at all levels of government and many if not most of them go nowhere.

  8. It seems relevant that NY already stuck down the Aggravated Harassment in the Second Degree § 240.30(1)(a) with People v. Golb, and this bill’s language appears to be even more sweeping, allowing for more speech to be criminalized.

    It also seems relevant that this bill places an “imposition of inconsistent rights” as afforded in 47 USC § 223 (f)(2) and would violate the Supremacy Clause.

  9. Sometime legislators file bills they know are illegal to have a campaign issue.

    Sometime legislatures even pass them.

  10. So, it violates the 1A and would be preempted by § 230, but other than that, it’s a terrible idea.

    1. How can you call “common sense speech control” a violation of the 1A? Have you no respect for the decades of jurisprudence regarding the 2nd amendment?

      1. The Constitution is not a suicide pact. Oh, and writing a suicide pact is not allowable free speech.

  11. Insult speech. Glad the hecklers veto proponents made that clear.

  12. Given Justice Gorsuch’s reading of Title VII calling someone racist would likely fall under this law. 1) It will almost certainly be based on beliefs (although a court could try to read belief narrowly to be more analogous to just religious beliefs; that would still not help those calling people transphobic or homophobic if their beliefs are based on their faith), 2) part of being called a racist will almost certainly be based partly on their race, being white or at least a different race than what they criticize.

    Basically every insult the left hurls against the right would be hate speech under this rule.

  13. So the socialist community would be breaking the law each time they called Christians, Jews, or Muslims homophobic?

    BLM would be silenced, as their entire reason for being is racist?

    The democrats would never again be allowed to openly hate Trump?

    I didn’t think so.

  14. Seems to me that this bill would outlaw terms like “white privilege.”

  15. I say let them pass the bill and enforce it. The most hateful speech out there on social media is by leftists. If the law is enforced equally (a huge question mark, but maybe) they will be the ones who start questioning if online censorship is a good thing.

  16. 1. As used in this section, the following terms shall have the following meanings:

    (a) “hate speech” means a public expression, either verbally, in writing or through images, which I hate.

    That, at least, would be more honest.

Comments are closed.