The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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."


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.