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.

Comments

[BravoCharlieDelta]

We’ve seen the videos of the UK police arresting people for hurting people’s feelings on Twitter.

We all saw that coming here. Democrats gonna Democrat.

[Ed Grinberg]

I am pretty sure that all major political parties over there -- including the "Conservative" Party! -- support this crap.

[Nige]

No, it's just the Conservative Party in the UK.

[Gandydancer]

Are you kidding us?

It's the same uniparty there as here.

[apedad]

IANAL so I'm just curious why the AG is the defendant when (apparently), the office hasn't taken any action to enforce the law.

Can you submit a pre-emptive lawsuit?

[Eugene Volokh]

The short answer is that generally one can, and indeed many lawsuits challenging new statutes are such "preenforcement challenges." It isn't always possible, and there's a whole complicated body of law dealing with it, but it is indeed done, and often.

[apedad]

Thanks and I guess that makes sense since a court cannot demand a law be rescinded but can force an executive agency to not enforce the law.

[Lee Moore]

IIRC that was what the Texas abortion thing was all about. The law had been crafted so as to not involve State officials in its enforcement, precisely to try to prevent pre-enforcement challenges.

Presumably the same dodge might work - initially - for New York, if it left enforcement to private suits.

[Gandydancer]

From the embedded link: “5. ANY SOCIAL MEDIA PLATFORM THAT KNOWINGLY FAILS TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION SHALL BE ASSESSED A CIVIL PENALTY FOR SUCH VIOLATION BY THE ATTORNEY GENERAL NOT TO EXCEED ONE THOUSAND DOLLARS EACH DAY”

So your pet peeve about the TX law is irrelevant.

[Bored Lawyer]

That's to a large extent what the Declaratory Judgment Act is about. You still need standing and a live controversy. But you don't have to wait until there is enforcement.

The leading case is Steffel v. Thompson, 415 U.S. 452 (1974).
https://scholar.google.com/scholar_case?case=14354642176160321717&q=Steffel+v.+Thompson,+415+U.S.+452+(1974).&hl=en&as_sdt=6,31&as_vis=1

[EscherEnigma]

Not stated: where New York is dictating how you respond to any complaints.

Because they aren't. Yes, you must have a mechanism for people to complain. No, you are not obligated to do anything other then say "cry more bro".

[mulched]

I looked over the law text and have to agree on this part. The title very much overstates what the law does.

Wire up the flag comment button to a form that collects an email and complaint info and fire off an auto-reply saying nope we don't remove comments and you're set.

A law proposing to require that is dumb, but we've had dumber.

[Brett Bellmore]

"EACH SOCIAL MEDIA NETWORK SHALL HAVE A CLEAR AND CONCISE POLICY READILY AVAILABLE AND ACCESSIBLE ON THEIR WEBSITE AND APPLICATION WHICH INCLUDES HOW SUCH SOCIAL MEDIA NETWORK WILL RESPOND AND ADDRESS THE REPORTS OF INCIDENTS OF HATEFUL CONDUCT ON THEIR PLATFORM.

NOTHING IN THIS SECTION SHALL BE CONSTRUED ...

TO ADD TO OR INCREASE LIABILITY OF A SOCIAL MEDIA NETWORK FOR ANYTHING OTHER THAN THE FAILURE TO PROVIDE A MECHANISM FOR A USER TO REPORT TO THE SOCIAL MEDIA NETWORK ANY INCIDENTS OF HATEFUL CONDUCT ON THEIR PLATFORM AND TO RECEIVE A RESPONSE ON SUCH REPORT.

ANY SOCIAL MEDIA PLATFORM THAT KNOWINGLY FAILS TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION SHALL BE ASSESSED A CIVIL PENALTY FOR SUCH VIOLATION BY THE ATTORNEY GENERAL NOT TO EXCEED ONE THOUSAND DOLLARS. EACH DAY SUCH OFFENSE SHALL CONTINUE SHALL CONSTITUTE A SEPARATE ADDITIONAL VIOLATION. IN DETERMINATION OF ANY SUCH VIOLATION, THE ATTORNEY GENERAL SHALL BE AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES."

So, there's a fairly hefty penalty for failing to have a mechanism for providing a response.

Now, I suppose you're pretty confident that an automatic pingback saying, "So what? We don't care." would satisfy the terms of the law. Confident enough to indemnify Volokh against the risk of testing that theory?

[mulched]

Well damn. I'm just glad the text of the law I read wasn't in all caps.

[Brett Bellmore]

Lucky you. The spacing was oddball, too, I had to fix it.

[Brett Bellmore]

I suppose Volokh could say "the mechanism for complaining is commenting on the comments you're complaining about", but "cry more, bro" might be regarded by the prosecutor as sufficiently direct.

Might need, "Cry more, Nige!" for that. Or something of that nature. Individually crafted responses.

But, of course, the process is, as always, the punishment.

[Kazinski]

Maybe you missed this part:
"mandates that they answer complaints with a direct response."

I'd say on any day here there's going to be at least 10 comments that someone could find objectionable and certainly none are unprotected by the first amendment. Mandating 10 direct responses a day from Professor Volokh sounds like an impermissible burden and would lead him to curtail our first amendment protected speech.

[Noscitur a sociis]

Can you quote the language in the statute that you feel imposes this mandate?

[Kazinski]

Brett’s got it above:
“AND TO RECEIVE A RESPONSE ON SUCH REPORT.”

[Noscitur a sociis]

Go on, what does that sentence say about receiving a response to the report?

[Kazinski]

Now you are just being tendacious.

People doing nothing more than exercising a first amendment right do not need to provide a government mandated response to any queries about the exercise of those rights.

Next New York is going to mandate a report every time someone carries a pistol in public, where they went, who they saw, etc. Plus every time they go to the shooting range, rounds expended, groupings.

I think not.

And I'll also say if EV thinks it infringes enough on his rights to file suit, then I'll defer to him. I don't think he is promiscuously litigious.

[Nige]

'tendacious.'

That's not a word, but I'm not having a go at you because it's such a brilliant mash-up of mendacious, tendentious and tenacious that it probably should be.

[DonP]

Wow!!!

Not sure if Letitia gets out over her skis all by herself, or if her political advisors and paid publicist motivate her to do stupid, unconstitutional things on a regular basis?

[apedad]

NY AG has not taken any action.

Do some reading.

[SDN]

“NY AG has not taken any action.”

No, just provided a greased ramp to 1A Hell by establishing a law that will a) not be equally enforced and b) provides the basis for endless lawsuits over what the definition of “adequate response” is.

And each of those lawsuits will require the defendant, such as Professor Volokh, to: 1. Disrupt his life to show up in court one or more times, 2. With a lawyer hired to defend him (Professor Volokh might be able to dodge this one, although that saying about defendants self-representing and fools might apply). 3. Because it’s a civil suit, that lawyer will have to be paid by the defendant (no public defender), 4. And the standards for guilt are lower (preponderance vs reasonable doubt).

That process ALONE is enough punishment to get a defendant to either block all comments or shut down the blog.

And there really aren’t any good faith arguments possible that isn’t exactly how it will work.

[Gandydancer]

apedad : "NY AG has not taken any action. / Do some reading."

Read this: "ANY SOCIAL MEDIA PLATFORM THAT KNOWINGLY FAILS TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION SHALL BE ASSESSED A CIVIL PENALTY FOR SUCH VIOLATION BY THE ATTORNEY GENERAL..."

Dunno how it works in your neck of the woods, but I'm pretty sure that around here (California) any such language is going to elicit a comment from the AG before it gets passed. We just don't have a link to it yet.

[Ed Grinberg]

This is a duly-passed state law.
(I wonder if any Republicans voted for it? I would like to think not.)

[Noscitur a sociis]

Only four state senators voted no (all Republicans); 14 Republican senators voted in favor. In the assembly, 37 Republicans voted no, and 6 voted in favor.

[DWB]

Letitia James loves sheep.

No ... she really LOVES sheep.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Woodchippers. That's the ticket!

[Rev. Arthur L. Kirkland]

All-talk, disaffected, boorish, bigoted, blustering, faux libertarian right-wingers are among my favorite culture war casualties.

These losers can't be replaced fast enough.

But they will be replaced, and until then they will continue to comply with the preferences of their betters.

They get to whine and whimper about it as much as they like, though.

Carry on, clingers. You know the rest.

[Gandydancer]

What we know is that you're a repetitive shit with your head up your butt.

[Noscitur a sociis]

[NB: This comment is based on the assumption that this is the enacted version of the law. If that's incorrect, then go ahead and disregard.]

As I read it, the law requires you to

1. Have a tool to allow users to report hate speech;
2. Allow you to respond directly to how those reports; and
3. Post a "clear and concise" policy explaining how you plan to deal with the reports.

I don't see anything that either requires you to actually respond to the reports, or that specifies what your policy needs to be. In other words, it seems like you would be in total compliance if you switched the functionality of the "flag comment" button to send an email to an unmoderated email account, and indeed it seems like the "report abuse" link at the top of every comment section might be enough. Likewise, I would think adding a sentence explaining that "Our policy is to ignore all reports of "hateful conduct" as defined by N.Y. Gen. Bus. Law § 393cc(1)(a), but in our sole discretion we may elect to take any action that we see as appropriate in a specific case, including editing or deleting the comment."

That doesn't seem like a particularly constructive use of anyone's time or energy, but I'm not sure I see at as a first amendment violation.

Or is there something I've overlooked that you think makes the requirements more onerous?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Suppose it were for, say, cats, instead of hate speech.

Is it really valid for a government to require all web sites to deal with cat speech?

1. Have a tool to allow users to report cat speech;
2. Allow you to respond directly to how those reports; and
3. Post a “clear and concise” policy explaining how you plan to deal with the reports.

[Noscitur a sociis]

As I said, I think it seems pointless and stupid. So it's certainly not "valid", in as much as it is something the government shouldn't be doing, and the people in the government who decided to do it should face criticism and a political price.

That doesn't necessarily make out a first amendment violation.

[Brett Bellmore]

What makes it a 1st amendment violation is that it provides them with a basis to start imposing litigation costs based on 1st amendment protected conduct.

[ah....Clem]

That's an interesting argument against this law. Not sure it's a compelling 1A argument, but it's definitely a good "this is bad public policy" argument.

Note that it also applies to the Texas and Florida laws, and almost all the other proposed laws regulating social media. So if you're against the NY law for this reason you should also be against the TX and FL laws.

These things are basically litigation factories, and unless you're an attorney looking for work I don't see how they benefit anyone.

Now, perhaps Noscitur a sociis is correct that the law is sufficiently toothless that it will have no practical effect, in which case we can all ignore it and move on with our lives. Meanwhile, I'll wish Prof Volokh and FIRE success in their suit.

[Rossami]

So you're saying that the requirement which reads "... SHALL HAVE A ... POLICY ... WHICH INCLUDES HOW SUCH SOCIAL MEDIA NETWORK WILL RESPOND ..." could be met by a policy that says "we won't respond"?

I'm gonna guess that most regulators would disagree with that interpretation. Is there a precedent that blog owners could rely on to support the argument that 'how we will' can be met by 'we won't'?

[Noscitur a sociis]

"We will respond to these reports by ignoring them" seems like a perfectly idiomatic English sentence to me.

[Rossami]

While I agree that's the appropriate policy response, my experience suggests that the NY regulators charged with enforcing this law will not agree with us. They are going to say that "Respond is defined as 'to say something in reply'. Ignoring something is not a response."

Again, is there a precedent you can point to defending the position than an affirmative duty can be met by not doing it?

[Noscitur a sociis]

I'll sign into Westlaw as soon as you elaborate on how your "experience" is binding or persuasive authority.

To my reading, the statute goes out of its way to say the only relevant affirmative duty is to provide "provide a mechanism for a user ... to receive a response on such report", not to actually provide one. And in addition to the usual canon of constitutional avoidance, the statute expressly says that it should not be read to violate First Amendment rights, which would suggest that if there is an ambiguity, it should be construed against the requirement.

[Brett Bellmore]

I would read the text under the ellipsis to mean it requires a mechanism for a user to register the complaint, and requires an actual response to the complaint, not just a mechanism that doesn't get used. The mechanism text only applying to the complaint, not the response.

[Noscitur a sociis]

I don’t think there’s any grammatical way to parse “to receive” in that sentence except with mechanism.

[zztop8970]

assume ad argumentum that your reading is correct. Is it your opinion that a state can pass a law violating the 1st amendment by abridging the freedom of speech if the effort to overcome the limitations and burdens imposed by the law is small?

[SDN]

Possibly. Again, the cost of defending oneself against the misapplied law is not a small one in terms of time or money.

[Bruce Hayden]

Sounds like forced speech to me, but on posting the policy, and even more in having to respond.

[Harvey Mosley]

You mean like "shall not be infringed"?

[AvikGupta]

Why does it matter how practically difficult the policy is? It’s a free speech violation that triggers strict scrutiny (I think you can argue that it imposes content-based restrictions on platforms bc certain speech is more burdensome; but NIFLA v Becerra is def sufficient).

Once we get to strict scrutiny, there’s no way you can argue there’s a compelling government interest. I think my favorite hypo is the “require all black people to clap their hands once before entering a building and punish all offenders by making them clap once.” Like it doesn’t matter how frivolous the law is; it violates the constitution

[Gandydancer]

Thanks for providing aversion without the unnecessay capitalization. I will transcribe it, in relevant part, here:

1 Section 1. The general business law is amended by adding a new section 2 394-ccc to read as follows: 3 § 394-ccc. Social media networks; hateful conduct prohibited. 1. As 4 used in this section, the following terms shall have the following mean- 5 ings: 6 (a) “Hateful conduct” means the use of a social media network to vili- 7 fy, humiliate, or incite violence against a group or a class of persons 8 on the basis of race, color, religion, ethnicity, national origin, disa- 9 bility, sex, sexual orientation, gender identity or gender expression. 10 (b) “Social media network” means service providers, which, for 11 profit-making purposes, operate internet platforms that are designed to 12 enable users to share any content with other users or to make such 13 content available to the public.

14 2. A social media network that conducts business in the state, shall 15 provide and maintain a clear and easily accessible mechanism for indi- 16 vidual users to report incidents of hateful conduct. Such mechanism 17 shall be clearly accessible to users of such network and easily accessed 18 from both a social media networks’ application and website, and shall 19 allow the social media network to provide a direct response to any indi- 20 vidual reporting hateful conduct informing them of how the matter is 21 being handled. 22 3. Each social media network shall have a clear and concise policy 23 readily available and accessible on their website and application which [page break] 1 includes how such social media network will respond and address the 2 reports of incidents of hateful conduct on their platform. 3 4. Nothing in this section shall be construed (a) as an obligation 4 imposed on a social media network that adversely affects the rights or 5 freedoms of any persons, such as exercising the right of free speech 6 pursuant to the first amendment to the United States Constitution, or 7 (b) to add to or increase liability of a social media network for 8 anything other than the failure to provide a mechanism for a user to 9 report to the social media network any incidents of hateful conduct on 10 their platform and to receive a response on such report. 11 5. Any social media platform that knowingly fails to comply with the 12 requirements of this section shall be assessed a civil penalty for such 13 violation by the attorney general not to exceed one thousand dollars. 14 Each day such offense shall continue shall constitute a separate addi- 15 tional violation. In determination of any such violation, the attorney 16 general shall be authorized to take proof and make a determination of 17 the relevant facts and to issue subpoenas in accordance with the civil 18 practice law and rules.

[Gandydancer]

Strange. I edited the text to add some lines before the action part of the law, and Reason‘s software deleted the line breaks. And it ate the blockquote tags, too.

If the courts could be relied upon to apply the law as if it meant exactly what it says you proposed method of compliance ought to work. But of course they can’t be trusted to do that. If you look, e.g., at what has happened with Sec. 230 it can readily be anticipated that some bumptious and egregious kritarch will assert that what the law “allows” should be translated into a demand that the response be individuated and responsive and substantive. And this AG will run and run with that.

[Stephen Lathrop]

Right wingers continue to attempt to exploit the speech/conduct divide by arranging deliberate campus provocations. They recruit speakers who demand apartheid or criminal prosecution for targeted groups of students.

To the extent that continues, rights wingers should expect similar counter provocations, plus all-out attempts to counter and prevent attempts to constitutionalize what amounts to right wing bigotry.

The free speech solution Professor Volokh touts but does not apparently insist upon would do it differently. It would demand avoidance of the speech/conduct borderline. It would insist on purely expressive implementation of right wing advocacy. It would rule out advocacy which threatens politically the well-being of identifiable targets on campus. It would keep discussion on a plane of abstract, purely academic presentations, supported by academically respectable arguments. And it would happen in context of multi-polar debate, not one-sided polemic.

All that is necessary because a university, even a public university, is not the public square. It is a community, with leaders who undertake responsibility to guard jealously the well-being and access to equal treatment of all community members.

Nothing which happens under the responsibility of those leaders ought to be permitted to target some community members, except in obvious service to the university's highest purpose, which is academic, not social, and not political. Keep it academic, and say what you can justify academically. No one will protest. But target some university community members politically, call that expressive freedom, and expect politically organized push-back in kind.

[Noscitur a sociis]

They recruit speakers who demand apartheid or criminal prosecution for targeted groups of students.

Who are a couple of the clearest examples of such speakers?

[Abdul Abulbul Amir]

The bigots that oppose the castration of children might be an example.

[mulched]

Well thank goodness for those wonderful leftist academics who are never political nor provocative and always and only "undertake responsibility to guard jealously the well-being and access to equal treatment of all community members."

The only reason leftist academics ever do anything political is because of those awful righties. /s

[Brett Bellmore]

"by arranging deliberate campus provocations."

You write that as though such "provocations" actually had any legal or moral significance. We're talking adult humans here, members of civilization, not feral children raised by wolves.

They're expected, both legally and normatively to be able to cope with 'provocations'. If not entirely calmly, at least peacefully, without violating anybody's rights in response.

If they can't, forget walking the halls of academia, they're not fit to walk around in public, maybe we can send them back to the wolves for some remedial training.

[Stephen Lathrop]

Bellmore, the provocations in question are demands to violate the right to equality of targeted university community members. Of course that has moral significance. Want to avoid push-back against your own rights? Don't advocate against the rights of others.

[Lee Moore]

Mr Lathrop's border between speech and conduct

"It would rule out advocacy which threatens politically the well-being of identifiable targets on campus"

appears to go straight through the middle of speech. Advocacy is entirely speech.

[JSinAZ]

[Stephen Lathrop]

Lee Moore — Fine. Take the advocacy which is entirely speech to the actual public square. I do not object to it there. Of course, in the actual public square, you will have trouble assuring the complacent response you demand be imposed by force in academia.

In an academic setting, advocacy which targets specifically the well-being of members of the academic community cannot be privileged and one-sided. It should expect vigorous push back from targets free to choose their own expressive methods. If you think that is inappropriate in academia, then so is the targeting which evokes it.

[Gandydancer]

"It should expect vigorous push back from targets free to choose their own expressive methods."

If these "members of the academic community"['s] "own expressive methods" involve anti-academic conduct (which it often does) I'm perfectly OK with "targeting" them for expulsion and, when it ought to apply, criminal prosecution.

[Kazinski]

"All that is necessary because a university, even a public university, is not the public square."

Then what is the rationale for
Academic Freedom?

"Keep it academic, and say what you can justify academically."

So once a professor strays from orthodox academics, he is toast.

[SDN]

And, of course, anyone can define orthodox to their tastes....

[Stephen Lathrop]

Kazinski — Academic orthodoxy prescribes methods, not content, and not results. If the content and results you want cannot be supported by academic methods, then you need to find a non-academic forum—the actual public square, for instance.

Your desire to transform academia is not a reason for academia to privilege outsiders to practice methods it normally discourages among its own community.

[Gandydancer]

The idea that there is any danger that "academia" will " "privilege" "outsiders" to "practice methods" it "normally discourages" is laughable lunacy.

What "academia" actually does is "privilege" its own peculiar forms of inmate lunacy.

[SDN]

If you steal my tax dollars to fund that public university, in any fashion, it's covered by the Constitution. See Hillsdale College for how you can dodge it.

[Longtobefree]

"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. "

Just for the record, none of this exists at democrats.org

[Noscitur a sociis]

I only skimmed the site briefly, but it doesn't look to me like democrats.org would satisfy the definition of a "social media network".

[SDN]

Now point to the text in the law defining "social media network" that excludes them so clearly that no judge will let the case proceed.

Spoiler: you can't.

[Gandydancer]

Even if THIS law doesn't apply, why should it be able to post "hate speech" without a method to report it, etc?

[John F. Carr]

For those not on PACER, follow along at https://www.courtlistener.com/docket/66580652/volokh-v-james/

[John F. Carr]

The lead attorney for the plaintiffs is admitted in New York and has a seven digit bar ID number. Another attorney is admitted in Vermont and has a four digit ID number. Does New York have a thousand times as many lawyers as Vermont?

[CJColucci]

NY has just under 180,000; Vermont has just over 2,000.

[John F. Carr]

The complaint seeks a declaration that

(1) The law violates the First Amendment by being overbroad and viewpoint-based and by compelling speech.
(2) The law violates the Fourteenth Amendment by being vague.
(3) The law is preempted by Section 230

along with corresponding injunctive relief.

[Gandydancer]

Injunctive or declaratory?

[DaveM]

Didn't Florida's legislature try something similar? If memory serves, it wound up mired in the courts immediately. I'm very suspicious of laws that just seem like court-bait. It considerably lowers my opinion of law makers who do this.

[SKofNJ]

Go get'em Eugene. Hope that lawyer fees are available.

[AtR]

There is no tangible cost to NY, and a significant cost in time and money to the plaintiffs.

[Mitch]

The ultimate effect of a law like this is to coerce blogs into shutting down reader comments. Eugene might be able to ensure that posters like Ilya, Jonathan, and Josh don't say anything that would run afoul of the speech police, but the rest of use are a different animal. In the end, there will be a speaker-class that lectures to everyone else (the audience-class), instead of a conversation among everyone.

[SDN]

"(2) The law violates the Fourteenth Amendment by being vague."

The standard for defining the speech as "hateful" is entirely subjective....

[Stephen Lathrop]

SDN — Academic institutions have speech standards they impose on members of their own communities. The best such institutions distinguish broad liberty for purely academic discourse from prescribed standards to encourage comity in day-to-day interactions among community members. There should be no presumption under law that outsiders get license to abuse comity in ways which community members cannot.

[Gandydancer]

This would be a stronger argument if the "community members" weren't so often abusive of all standards whatsoever.

[AtR]

Lack of pushback to draconian COVID policies gave a lot of government officials a head of steam that will take a while to cool down.

[SKofNJ]

Seems to me that the law requires sites to provide a mechanism for receiving and responding to complaints, but does not mandate that responses be actually provided. But courts avoid construing statutes as mandating absurd outcomes. Thus it is likely that the statute will be read as actually requiring a response to every complaint. That's certainly compelled speech even if each response is the same and even if it is automatically generated.

[Squirrelloid]

Requiring the posting of a policy on how they deal with such complaints is also compelled speech on-face.

[Guardian253]

I read the Reason pages a lot, and they always talk about getting rid of qualified immunity for common workers, but never talk about getting rid of immunity for leaders, supervisors, politicians, and judges. When you give absolute immunity to those types of people, they have no fear of outright violating your constitutional rights, and this is just another in a long line of examples. Legislatures pass laws that are clearly violate the constitution without repercussion. In Illinois, California, New York, and elsewhere, politicians have passed or seek to pass laws banning outright banning any firearms in violation the 2nd Amendment. If they no fear in doing that, they have no fear of violating 1st Amendment rights. Everyone involved in that act, should be liable, not just the worker bee trying to keep his job and feed his family while trying to enforce the law politicians passed. Politicians will continue to use workers as cannon fodder in order to protect themselves. Get rid of absolute immunity for politicians, and they will act more civilized.

[ah....Clem]

Scratching my head trying to reconcile this pleading with Prof. Volokh's previous advocacy for the government to treat social media sites as "common carriers".

He seems to have gotten it right this time; not sure how the two viewpoints can co-exist. Perhaps he can elaborate...

[Gandydancer]

Does the fact that telephone companies are common carriers allow governments to mandate that they maintain facilities to report "hate speech" that gets transmitted telephonically?

[starrlass]

BRAVO on your piece in today's WSJ Friday Dec 2, 2022 A15

So well written! GRATFUL! (esp considering you are from the "woke" state of CA lol.

[rswallen]

Not content with providing several wins to 2nd amendment advocates, the state of NY now turns its legislative head towards providing several wins to 1st amendment advocates.

[Roger S]

So if I post a hateful message here, I run the risk that I could be subpoenaed to testify about it in this case.