The Volokh Conspiracy
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Volokh v. N.Y. A.G.: "New York Can't Target Protected Online Speech by Calling It 'Hateful Conduct'"
From the Foundation for Individual Rights and Expression:
Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.
The law is titled "Social media networks; hateful conduct prohibited," but it actually targets speech the state doesn't like—even if that speech is fully protected by the First Amendment.
"New York politicians are slapping a speech-police badge on my chest because I run a blog," said plaintiff Eugene Volokh, who co-founded The Volokh Conspiracy legal blog in 2002. "I started the blog to share interesting and important legal stories, not to police readers' speech at the government's behest."
The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could "vilify, humiliate, or incite violence" based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about "hateful" content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general's office, subpoenas, and daily fines of $1,000 per violation.
New York's law doesn't define "vilify," "humiliate," or "incite." Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law's scope entirely subjective. (The First Amendment does not protect inciting imminent violence, but New York's law offers no indication, as the First Amendment requires, that it applies only to speech directed to and likely to produce imminent lawless action.)
What expression could the new law reach? Plenty of speech fully protected by the First Amendment, including but not at all limited to:
- An atheist's post "vilifying" people of faith by criticizing religion.
- A posted video of John Oliver "humiliating" the British people by criticizing the monarchy.
- A comedian's blog entry "vilifying" men by mocking gender stereotypes.
- A post about Kathy Griffin "humiliating" Christians by shouting "Suck it, Jesus, this award is my God now!" at an awards show.
- Your comment on almost any website that could be considered by someone, somewhere, at some point in time, as "humiliating" or "vilifying" a group based on protected class status like religion, gender, or race.
"The state of New York can't turn bloggers into Big Brother, but it's trying to do just that," said FIRE attorney Daniel Ortner. "The government can't burden online expression protected by the Constitution, whether it's doing it in the name of combating hate or any other sentiment. Imagine a similar law requiring sites to publish a reporting policy for speech the state considers un-American—that would be just as unconstitutional."
Volokh, a constitutional law professor and First Amendment expert, is joined in the lawsuit by online platforms Rumble and Locals, which are, respectively, a video platform similar to YouTube, and a community-building platform that allows creators to connect directly with their audience.
Bloggers, commenters, websites, and apps around the country are ensnared by the New York law due to its broad definition of "social media networks" as for-profit "service providers" that "enable users to share any content." This vague wording means that the law can impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers—but no government entity can legally compel blogs or other internet platforms to adopt its broad definition of "hateful conduct."
A recent report issued by Attorney General James' office shows this law may be just the start of Empire State lawmaker's attempt to silence protected speech online. Released in the wake of May's tragic mass shooting by a white supremacist at a Buffalo supermarket, the report calls for further regulation of online speech—recommendations that, if adopted, would also violate the First Amendment.
"What happened in Buffalo broke the nation's heart, and the impulse to take action is understandable. But violating expressive rights online won't make us safer," said FIRE senior attorney Jay Diaz. "In the name of combating 'hateful conduct,' New York's new law reaches a vast amount of everyday commentary—jokes, political debates, random commentary, you name it. That's a problem. The First Amendment protects all of us, and this new law doesn't." …
Many thanks to FIRE—and in particular Darpana Sheth, Daniel Ortner, and Jay Diaz—as well as local counsel Barry Covert (of Lipsitz Green Scime Cambria LLP) for representing me in this case.