‘Unconstitutional’: Free Speech Advocates Challenge New York Law Prohibiting ‘Hateful’ Online Conduct

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Alexa Schwerha Contributor
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  • A New York law will hold social media networks accountable for prohibiting “hate speech” on their social media platforms.
  • The law, which goes into effect on Saturday, is facing legal challenges for allegedly violating the First Amendment.
  • “It’s ill conceived and it is, in my view, unconstitutional,” Legal Insurrection founder Bill Jacobson told the Daily Caller News Foundation.

Free speech advocates are challenging a New York law which requires social media networks to provide mechanisms to dispel hate speech on their platforms, claiming that it is unconstitutional and vague.

Senate Bill 4511A, known as “Social media networks; hateful comments prohibited,” takes effect tomorrow after being signed by Democratic New York Gov. Kathy Hochul in June. It applied to all “for-profit … internet platforms” which conduct in-state business and requires they publish a plan detailing how they will remove “hateful” comments from their site.

“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,” the text reads.

The Foundation for Individual Rights and Expression (FIRE), a watchdog group dedicated to protecting First Amendment rights, filed a lawsuit against Attorney General Letitia James of New York on Thursday. Jay Diaz, a FIRE attorney, told the Daily Caller News Foundation that the law has several First Amendment violation.

“First, the law is aimed at silencing internet speech New York doesn’t like,” Diaz said. “The state’s highest officials have repeatedly chastised online platforms for allowing this disfavored–but constitutionally protected–speech, and, in something of a First Amendment ‘double whammy,’ this law forces websites to chill their users speech by singling it out with a dedicated policy, complaint mechanism, and required responses too inform complainants how the disfavored speech is being ‘handled.'”

Diaz also claimed the law is “overbroad” and “vagu[e].”

“Just as government can’t tell us what not to say, it also can’t force us to parrot any particular message,” he said.

Bill Jacobson, founder of Legal Insurrection, told the DCNF that it is “extremely troublesome” that James will be in charge of enforcing the law as he said she is “an extremely politically driven person.”

“When she ran for [office], she announced that her primary goal was to get Donald Trump,” he said. “So it is not hard to imagine that a department run by someone who’s goal in life is to get Donald Trump will deem speech favoring Donald Trump to be hate speech.”

Eugene Volokh, the lead plaintiff, told the DCNF that the law could apply to more than social media companies and is concerned that he could be held liable for comments posted by outside users to his blog, The Volokh Conspiracy. He also claimed the lawsuit is not specific in how social media networks are supposed to respond to comments that could be considered “hateful.”

“The heading, for example, says ‘hateful content prohibited,’ and if indeed the law is read as prohibiting hateful conduct, and hateful conduct is just a label for certain kinds of speech, well then I would basically have to delete comments that express views that the law condemns,” he shared. “That’s not something I generally do.”

The body of the law, he continued, mandates networks have “a clear and concise policy” detailing how it will address “hateful” incidents. (RELATED: Swiss Voters SupportMaking Homophobia A Criminal Offense Resulting In Up To Three Years In Jail)

“Maybe it would be enough for me to have a policy that says ‘I don’t agree with the New York definition of hateful conduct. I will not remove such things, and if you complain to me I will just respond that I don’t remove them,'” he said. “But even that, it seems to me, being forced to have that kind of policy would essentially require me to speak to people I’d rather not speak to like complainers who, maybe, raise complaints that I’m not interested and may find offensive, myself.”

Networks which fail to comply with the new standards may face a fine upwards of $1,000.

Volokh hopes that the lawsuit first results in a preliminary injunction, which would temporarily block the New York Attorney General from enforcing the law, and then set a precedent for other laws.

“I just don’t think the government should be going out there and pressuring websites to block viewpoints that it disapproves of,” he said. “It should be up to each of us to make those kinds of decisions, not for the government to say ‘here’s a particular set of viewpoints that we’re trying to get blacklisted.'”

Jacobson also told the DCNF that the law is unconstitutional and “essentially a censorship law.”

“Hate speech can be very subjective. What one person considers hate speech, another person may not,” he said. “So it really is imposing on websites an obligation to act as an enforcement arm of the government, and that’s where I think it runs into constitutional problems.”

Diaz told the DCNF he expects the court will hear oral arguments early in 2023.

“‘I think this is a horrible law,” Jacobson said. “It’s ill conceived and it is, in my view, unconstitutional.”

James and Democratic State Sen. Anna Kaplan, who sponsored the bill, did not immediately respond to the DCNF’s request for comment.

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