New York's Online Hate Speech Law Raises Serious First Amendment Concerns
Even content creators outside of New York would feel its effects.
The state of New York is heading back to court to defend a law that would require social media networks to police speech deemed "hateful."
"Online platforms should be held accountable for allowing hateful and dangerous content to spread," said New York Attorney General Letitia James in an October 2022 statement. "Extremist content is flourishing online, and we must all work together to confront this crisis and protect our children and communities."
The legislation, Assembly Bill A7865A, went into effect in December 2022. In February, Judge Andrew L. Carter Jr. of the U.S. District Court for the Southern District of New York issued an injunction halting its enforcement and setting the stage for a showdown at the U.S. Court of Appeals for the 2nd Circuit.
The question before the court: Does the law's crackdown on so-called hate speech violate the First Amendment?
Eugene Volokh, a professor at UCLA School of Law and co-owner of the popular legal blog The Volokh Conspiracy (which is hosted by Reason but operates with full editorial independence), says it does. Should New York's law go into effect, Volokh would be compelled to establish a "hateful conduct" policy for his comment section, despite living and working in California, because the site is available to readers in New York. He would also be required to create an avenue for users to report content that violates such a policy, which, according to the law, includes any material perceived to "vilify, humiliate, or incite violence against" certain classes and groups protected on the basis of sex, race, and other attributes.
And while The Volokh Conspiracy might not meet the typical definition of a "social media network," it falls under the purview of New York's law because the site is "designed to enable users to share any content with other users or to make such content available to the public."
How exactly Volokh would abide by New York's law remains unclear. "The law's vagueness makes it impossible for Volokh to know whether the comment policy satisfies New York's Hate Speech Policy requirement or how it could do so," wrote the Foundation for Individual Rights and Expression (FIRE) in a lawsuit filed December 1, 2022 on behalf of Volokh, the video platform Rumble Canada Inc., and the online creator-crowdfunding site Locals Technology Inc.
The law "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," wrote FIRE in its complaint. "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."
Violations of the law could lead to state investigations spearheaded by James, potential subpoenas, as well as a $1,000 daily fine per encroachment.
"I started the blog to share interesting and important legal stories," said Volokh last year, "not to police readers' speech at the government's behest."
But the law's reach extends far beyond The Volokh Conspiracy, Rumble, and Locals. Social media behemoths like Facebook and X (formerly known as Twitter)—platforms that attract millions of users and have a steady influx of content— would also be placed under a microscope.
"The Online Hate Speech Law forces social media networks to promulgate policies governing so-called 'hateful conduct' and create 'mechanisms' by which users can report such conduct," wrote the Cato Institute in an amicus brief. "This would plainly chill social media users from engaging in protected expression."
New York is not alone in its efforts to regulate online material. On the flip side of the coin, Florida and Texas recently passed laws constraining social media companies' ability to moderate content. The Supreme Court recently agreed to hear the cases challenging those laws.
"The public should be worried when the government attempts to regulate social media because once a precedent gives the government that power, it is inevitable that eventually that power will be used in ways you don't like," says Thomas A. Berry, a research fellow and editor‐in‐chief of the Cato Supreme Court Review. "Whether liberal or conservative, everyone should be concerned when a state or federal government tries to supersede the decision-making authority of a private speech platform."
