The Volokh Conspiracy
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Amicus Briefs in Volokh v. James, the Second Circuit Case Related to Social Media "Hate Speech" Policies
"For the most part, the American Civil Liberties Union, Young Americans for Freedom, and the Babylon Bee don't see eye to eye."
I blogged in February about the decision by Judge Andrew L. Carter (S.D.N.Y.) in this case, which came out in our favor; to briefly quote Judge Carter (though you can read more in that post):
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc ("the Hateful Conduct Law" or "the law"). Yet, the First Amendment protects from state regulation speech that may be deemed "hateful" and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED….
The New York Attorney General's office has appealed the case to the Second Circuit. My pro bono lawyers at the Foundation for Individual Rights and Expression have filed their brief on behalf of me and platforms Rumble and Locals (all of us are plaintiffs challenging the law), and in the last several days we've gotten ten other briefs supporting us. Here's a post on the subject from one of my FIRE lawyers, Daniel Ortner:
For the most part, the American Civil Liberties Union, Young Americans for Freedom, and the Babylon Bee don't see eye to eye. But last week these three organizations, along with 10 others (and a law professor) filed amicus curiae — "friend of the court" — briefs in the U.S. Court of Appeals for the Second Circuit supporting FIRE's challenge to New York's online hate speech law.
The government can't force websites to take a position on what speech is "hateful," "humiliating," or "vilifying." It also can't pressure websites to take down constitutionally protected speech. But that is exactly what New York's law tries to do: control a vast array of protected speech across a large swath of the internet.
That's why FIRE sued on behalf of Eugene Volokh, noted First Amendment scholar and co-founder of The Volokh Conspiracy blog, and online platforms Rumble and Locals to stop New York from enforcing its unconstitutional law. And we won. Back in February, U.S. District Court Judge Andrew Carter of the Southern District of New York agreed with FIRE and halted enforcement of the law.
New York appealed to the Second Circuit, and on Sept. 19, FIRE filed its brief opposing the appeal, arguing that the district court correctly identified the numerous ways that the online hate speech law jeopardizes free speech on the internet. We urged the Second Circuit to affirm the injunction.
First, the Electronic Frontier Foundation and the American Civil Liberties Union explain in their brief how content moderation is a fraught process that social media platforms attempt to navigate and that "government interjection of itself into that process in any form raises serious First Amendment, and broader human rights, concerns."
The Foundation for Moral Law's brief describes the many ways that New York's law sweeps protected speech — such as a cartoon making fun of the Ku Klux Klan, a meme referring to Donald Trump as the "orange man," and a quote from the Bible disapproving of homosexuality — into its definition of "hateful conduct."
The Cato Institute — with the help of attorneys from Gibson, Dunn, & Crutcher LLP — writes about how New York's law chills the speech of those who use social media platforms through its use of vague terms like "vilifying" or "humiliating." The brief imagines an average user simply giving up on sharing views on anything because "even flattery might be perceived as 'humiliating'," and speech on any number of topics including religion, politics, and current affairs might be considered offensive by someone, somewhere.
The Reporters Committee for Freedom of the Press explains how a publisher's determination of what should or should not be published is core protected speech under the First Amendment. New York attempts to "substitut[e] its own editorial judgment" for that of social media platforms. The law "invite[s] the Attorney General into the newsroom to supervise the adequacy of a publisher's disclosures," an unlawful intrusion into freedom of speech.
Santa Clara University School of Law professor Eric Goldman and TechFreedom highlight the extraordinary and unprecedented nature of New York's statute. Their brief describes that among 59 surveyed media and internet law experts, not one was aware of any historical precedent similar to New York's law, "highlight[ing] the exceptional and extreme nature of the legislature's intervention into editorial processes."
New Civil Liberties Alliance's brief explains that New York's requirement that websites create and post a hate speech policy is not a regulation of commercial speech or merely a requirement that websites disclose noncontroversial facts. The brief emphasizes that "[w]hat constitutes 'hate speech' is a topic of contentious debate and can hardly be described as uncontroversial." It forcefully argues that New York's law compels platforms to adopt the state's preferred definition of what is "hateful" and to refer to it whether they would like to or not.
NetChoice and Chamber of Progress point out that New York, with its online hate speech law, "joins a growing number of states trying to evade the First Amendment's constraints to influence what lawful speech appears online." New York's goal is to limit online content it considers harmful, but the law would only impose barriers on internet speech while doing little to improve content moderation. And allowing New York's law to remain in effect could lead to a proliferation of similar laws across the country ruining the unique marketplace of ideas that exists on social media.
Thomas More Society writes about the importance of protecting controversial speech. Its brief highlights how hate speech laws have been weaponized in other countries and even in the United States against "those who simply adhere to and express traditional moral views that are unpopular with those in power."
Life Legal Defense Foundation and Young Americans for Freedom write about New York's efforts to label protected speech as "hateful conduct." They argue that it is more important than ever to push back on efforts to label speech as "violence."
Last, but certainly not least, the satirical news site the Babylon Bee submitted a brief, written by the Alliance Defending Freedom, about how New York's law would discourage and suppress satire, a crucial " tool to expose foolish ideas," by pressuring websites to take down satirical content when it offends users. The Bee's brief ends with this terse but powerful declaration: "New York's Online Hate Speech Law would be laughable — if its consequences weren't so serious."
These politically diverse organizations recognize just how serious the consequences would be if New York's law is reinstated. Eugene Volokh, Rumble, Locals, and their counsel are thankful for the support of this impressive coalition. This case will play a critical role in protecting free speech on the internet and preventing governments from imposing their own views of what speech should or should not be allowed online. Oral argument before the Second Circuit is not yet scheduled but will likely occur sometime in early 2024.
