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New York AG flouts court orders by pressuring social media to censor 'hateful' speech: lawyers

Rumble's counsel implies Letitia James violated New York rules of professional conduct for lawyers by seeking same information she's blocked from requesting under injunction.

Published: October 22, 2023 12:29am

Free speech battles over Hamas terrorism against Israeli civilians and the Jewish state's military response aren't just roiling college campuses such as New York University, which is investigating its law school's student body president for using her office to blame Israel.

They could get the Empire State's attorney general in trouble with a federal judge.

New York Democrat Attorney General Letitia James violated court orders in litigation against the state's "hateful conduct" social media law by pressuring platforms to disclose how they are removing "calls for violence against Muslim and Jewish people and institutions" in the wake of the Israel-Hamas war, Rumble's lawyers said Thursday.

The Foundation for Individual Rights and Expression demanded the "immediate and unequivocal retraction" of James' Oct. 12 letters to its client, Google, Facebook owner Meta, Elon Musk's X, TikTok and Reddit, or it will file a motion to stop her again.

FIRE also represents Locals and UCLA law professor Eugene Volokh, whose eponymous law blog is covered because it allows reader comments, in the litigation.

George Washington University law professor John Banzhaf told Just the News he "strongly support[s] FIRE's concerns and objections to James' new efforts" and the law itself.

James is going beyond the "heckler's veto" to the "bully's veto," meaning that "statements which might provoke a bully to engage in violence should be banned to guard against just such violence," he wrote in an email.

A recurring critic of GWU's regulation of speech on Israel-Palestine issues, Banzhaf doesn't hold bar associations to the same standards, recently calling for law students who excuse Hamas terrorism to be denied admission to the profession.

U.S. District Judge Andrew Carter issued an injunction in February against New York's law – its response to the livestreamed Buffalo mass shooting – on the grounds that it likely compels speech from platforms and chills their users' speech. 

James's office was granted a stay on legal discovery as it appealed to the 2nd U.S. Circuit Court of Appeals, which last month received a cross-ideological barrage of briefs against the law from outside parties.

The Oct. 12 demand letters violate the injunction and the stay, FIRE attorneys told James, her office's Deputy Solicitor General Judith Vale and Senior Enforcement Counsel Jordan Adler in a letter Wednesday.

They are also staggeringly broad, according to FIRE, conceivably applying to "statements of American elected officials" that "may" encourage violence. 

It cited Rep. Cori Bush, D-Missouri, who called to end "U.S. support for Israeli military occupation and apartheid," and Sen. Lindsey Graham, R-S.C., who said "do whatever the hell you have to do to defend yourself."

The AG's office backed down Thursday with respect to Rumble because FIRE reminded it that the less-moderated alternative to YouTube "already provided its content-moderation policies" to James more than a year ago. Her office "wholeheartedly disagree[s]" with FIRE's claims about her new effort, however.

FIRE attorney Jay Diaz declined to tell Just the News whether the group would seek sanctions against James for brazen disregard of Carter's orders, though its warning letter refers to New York rules of professional conduct for lawyers.

"Our intention is still to seek to enforce the court's injunction" because James "has not apparently" rescinded the letters to the non-Rumble platforms, he said Friday. The Oct. 12 letters are "obviously a document request" that is "totally improper" under the stay, Diaz said. 

If James thought she was violating Carter's orders, she did so boldly. 

The AG issued a press release Oct. 13 pressuring the six named platforms to censor speech that does not meet the Supreme Court's 54-year-old Brandenburg test: both "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action." 

The release does not mention the "hateful conduct" law, despite James having played a leading role in its passage. However, it mimics the law's language by seeking "detailed explanations of the steps [platforms] are taking to stop the spread of hateful content." 

James touts her leading role in a "multistate coalition" against a federal judge's injunction against federal officials pressuring platforms to censor what she calls "harmful content online," but doesn't mention the 5th U.S. Circuit Court of Appeals largely upheld the injunction and even added a new agency 10 days earlier.

The letter to the companies also requested a response by Oct. 20 to the included questions.

James cited unspecified "press reports" about "terrorist groups and individuals that sympathize with them" using platforms to share materials that incite violence and worsen "growing antisemitism and Islamophobia." The letter also states the state's Attorney General's Office is "deeply" concerned  "in light of the tragic history of such calls for violence."

The AG asked 10 highly detailed questions, seeking their written policies and documentation, public and internal, for identifying, removing and preventing "re-posting" of calls for violence that fall short of the Brandenburg test. She implied they should be using an international anti-terrorism "hash-sharing database" to identify content.

These questions "plainly seek" for James's office to "take proof and make determinations of fact" under the enjoined law and "go further" by asking how they stop even "violent rhetoric," FIRE's warning letter states.

Her letter refers to "exactly the types of investigatory demands" prohibited by the injunction, stay and the First Amendment itself, the civil liberties group said, and seeks "essentially identical" information "through the same method of investigation" as the law provides. It's telling that the AG's letter does not invoke "any legal authority."

Her actions related to the stay may be worse, according to FIRE: "sending public demands meant to shame a party-opponent [Rumble] into providing discoverable information despite a court-ordered stay."

A footnote in the letter hints that FIRE is considering a formal complaint against James, citing the state's rules of professional conduct that prohibit lawyers from "communicating with an opposing party that the lawyer knows to be represented about the subject of the representation."

Law professor Banzhaf told Just the News: "I certainly agree that the new letter violates the spirit and intent" of the orders because it is "pushy and demanding and meant to be threatening."

But he said it was not "crystal clear" that "seeking so-called 'voluntary' cooperation and responses is the legal equivalent of 'discovery' in accordance with the rules of civil procedure" because "there appear to be no direct legal sanctions imposed by a judge for violating" James's requests.

James's office did not respond to Just the News queries. Neither did Google, Facebook, TikTok or Reddit on what if anything they told James. X sent an auto-reply: "Busy now, please check back later."

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