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Left and right unite against New York 'hateful conduct' regulation of social media, news, blogs

From Supreme Court analyses to "stupid jokes," Empire State's legislative response to livestreamed Buffalo mass shooting threatens wide swath of constitutionally protected content, diverse groups tell appeals court.

Published: October 2, 2023 11:00pm

Updated: October 3, 2023 8:02am

A New York law that compels social media companies to track and report "hateful conduct" on their platforms – defined broadly enough to cover a legal blog that allows reader comments – is raising alarms among a cross-ideological coalition of satirists, journalists and activists on both sides of the abortion debate.

They swamped the 2nd U.S. Circuit Court of Appeals last week with friend-of-the-court briefs supporting the plaintiffs challenging the law: UCLA law professor and Volokh Conspiracy founder Eugene Volokh, video-sharing platform Rumble and subscription-based community platform Locals, all of which practice minimal content moderation.

The Reporters Committee for Freedom of the Press (RCFP) illustrated the left-leaning groups' problem with the law championed by leading New York Democrats: It's the mirror image of red states banning political censorship by social media, a subject the Supreme Court will take up this term.

Gov. Kathy Hochul and Attorney General Letitia James have explicitly affirmed that the law, passed in the wake of last year's livestreamed Buffalo mass shooting to target speech perceived to "vilify" or "humiliate" people based on race, religion and other protected categories, is intended to induce companies to censor constitutionally protected speech.

Represented by the Foundation for Individual Rights and Expression, the plaintiffs pointed to James' comment in a press release a year ago on the role played by social media in the shooting.

"Online platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms," she said.

A federal judge agreed with the challengers' low view of the law earlier this year, issuing a preliminary injunction on the grounds that it compels companies to "speak about the contours of hate speech" and chills their users' protected speech.

Conservative satirists banned from Twitter for naming a transgender federal official their "Man of the Year" – only reinstated after Elon Musk's purchase of the platform now known as X – carried on the late humorist P.J. O'Rourke's legacy of filing joke-filled legal briefs.

The Babylon Bee compared itself to "other fake news" like CNN and touted its "tens of readers and nearly three jokes." It warned that New York's "tattle-tale requirements" will create a "sea of suspicion and retaliatory reports" that "dampens debate, humor, and stupid jokes alike."

While the Bee can withstand attacks by "humorless scolds, Big Tech, and prestigious media outlets" on its social media accounts, commenters on its site with "less fortitude" will avoid "controversial topics when they know they will be reported for it," the brief states. 

It notes that Facebook previously demonetized the Bee for "inciting violence" by making a reference to "Monty Python and the Holy Grail" in a joke about Sen. Mazie Hirono (D-Hawaii). The New York law has the same incitement provision without the constitutionally required "temporal element," it says. Satire becomes "impossible" under the law, and "the Bee’s staff do like their jobs."

The Life Legal Defense Foundation, which challenges legal restrictions on pro-life activism, and Young Americans for Freedom, whose conservative campus activism is frequently stifled, filed a joint brief asking the 2nd Circuit to halt the redefinition of "speech" as "conduct" proper for regulation.

"[T]he need to protect the ability of pro-life citizens to exercise their First Amendment rights to persuade their fellow citizens has taken on new urgency" since the Supreme Court's Dobbs decision returned abortion regulation to the states, the brief says. The law forces social media to declare a "falsehood, namely, that speech is conduct," making it unconstitutional on its face.

It's no different than fictional "blasphemous conduct" and "anti-two-sexes conduct" laws that regulate vilification of "any being or entity regarded as divine" and content that questions "the biological sex of any human being.”

These would force platforms to "speak a message effectively admitting the existence of things they may not believe exist," the brief says.

The libertarian-minded Cato Institute, which opposes abortion regulation, says the law imperils its own "robust social media presence," books, studies, conferences and annual Supreme Court law review.

The law's legal forebear is Alabama forcing the NAACP to disclose its membership lists during the civil rights movement, according to Cato.

Quoting the Supreme Court, the brief says the "initial exertion of state power" is responsible for the "private community pressures" that exposed NAACP members to economic, physical and "other manifestations of public hostility."

The New Civil Liberties Alliance, which is representing doctors in a legal challenge to the Biden administration's pressure on social media to censor purported disinformation, told the 2nd Circuit that New York is trying to pull a fast one by claiming to regulate "commercial speech."

This ordinarily applies to "factual and uncontroversial information" and arguably falls under a lower tier of judicial scrutiny, but it's nothing like the highly debated "hate speech" New York forces social media companies to address in their own policies, NCLA's brief says.

RCFP told the 2nd Circuit the law is broad enough to cover news organizations by virtue of their comments sections, the same reason it endangers law professor Volokh's blog.

The journalist advocacy group attacked the law for presuming to circumvent the "virtually insurmountable barrier” around a publisher's right to editorial judgment, even if only through "private or official examination," quoting Supreme Court decisions on a Florida law that forced newspapers to publish political candidates' responses to criticisms and a libel case against CBS.

It also challenged the commercial-speech justification that James invoked to defend the law, saying there was nothing "factual or uncontroversial about an editor’s judgments as to which viewpoints deserve to reach an audience." There's no such thing as a viewpoint-neutral decision to supplant "an editor’s point of view in favor of [the government's] own."

Tech advocacy group TechFreedom, which is also challenging the Texas and Florida laws against social media censorship at the Supreme Court, and Santa Clara University law professor Eric Goldman blasted the New York law for "forcibly exposing, scrutinizing, pressuring, and punishing decisions the government doesn’t like."

Echoing Volokh's description of the law as a "double whammy," their joint brief states its compelled-speech provision is "bad" and content-based speech regulation "even worse."

According to Goldman, who says he has researched internet law for 30 years, this "censorship-through-disclosure approach … has no historical antecedent" in pre-internet regulation.

"Even the threat of potential enforcement in this area distorts the publisher’s editorial decision-making, as the publisher will reprioritize its choices, optimizing them to placate the regulators, rather than to serve the best interests of its audience," the brief says. 

"If New York had aimed its 'hateful conduct' law at traditional print publishers … the constitutional violation would (one hopes) be plain for all to see," they told the 2nd Circuit.