Governments can regulate school board comments but not social media, courts rule

Tech companies and commenters at public hearings got diametrically opposed rulings last week in First Amendment challenges to the discretion of governments to police, restrain and chill speech.

U.S. District Judge Andrew Carter issued a preliminary injunction against New York's "hateful conduct" law, passed in the aftermath of the livestreamed Buffalo mass shooting to punish broadly defined "social media network[s]" for letting such content spread. 

It compels networks to "speak about the contours of hate speech" and chills their users' protected speech "without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal," Carter wrote.

The judge reminded New York that the First Amendment protects hate speech, "no matter how unseemly or offensive" to the state, and noted the "original iteration" of the bill that became law targeted purported misinformation in the wake of the Jan. 6 Capitol breach.

In Florida, U.S. District Judge Roy Dalton upheld a school board "public participation policy" challenged by Moms for Liberty. The judge ruled the policy is content-neutral and wasn't used to shut down the conservative group's members, just interrupt their remarks at meetings.

Though the 11th U.S. Circuit Court of Appeals refused to intervene when Dalton rejected Moms for Liberty's motion for preliminary injunction, the group's lawyers at the Institute for Free Speech told Just the News that ruling was limited to abuse of discretion, not the merits, and it will appeal.

An eclectic group of plaintiffs challenged the New York law: Canada-based YouTube competitor Rumble and its subsidiary Locals, a Patreon competitor, as well as UCLA law professor Eugene Volokh, whose ad-supported eponymous legal blog of two decades allows user comments.

The plaintiffs' lawyers at the Foundation for Individual Rights and Expression said the law's wording was vague enough to "impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers." Attorney General Letitia James didn't challenge the plaintiffs' standing but "reserves the right to do so in the future," Carter's order says.

In the wake of the Buffalo shooting, Democratic Gov. Kathy Hochul asked James' office to investigate online platforms for "civil or criminal liability." They released a joint report in October calling for platforms to be "held accountable for allowing hateful and dangerous content to spread," as happened with convicted shooter Payton Gendron's rampage on Twitch, Reddit and 4chan.

The resulting law requires networks to offer "a clear and easily accessible mechanism" for reporting conduct that vilifies, humiliates or incites violence related to several categories, including race, religion, disability, sexual orientation and gender identity.

It must include a "direct response" to complainants on "how the matter is being handled," and networks must post a "clear and concise policy" on how they'll respond to reports. The attorney general can investigate violations and seek civil penalties for "knowingly" not complying.

While those non-speech liability provisions mean the law isn't preempted by Section 230 of the Communications Decency Act, the judge said the plaintiffs were likely to win on other grounds.

Requiring a network to post a policy on its response to hateful-conduct reports is compelled speech, Carter wrote, citing Supreme Court and 2nd Circuit rulings against "state mandated notices" for pro-life pregnancy centers related to abortion and contraceptive availability. 

The law also forces networks to adopt a hateful-conduct definition "at least as inclusive" as New York's, a problem specifically for Rumble and Locals, whose removal policies are less comprehensive, the ruling says. It's not analogous to requiring restaurants to post "caloric information" as the state claims.

"[A]t a minimum" the law puts the companies "in the incongruous position of stating that they promote an explicit 'pro-free speech' ethos" while doing the opposite, Carter wrote. He cited the 11th Circuit's ruling against Florida's law against social media censorship as violating the "editorial judgments" of such companies.

It's not clear what effect the law could have on "reducing the instances of hate-fueled mass shootings," given that it doesn't require networks to "affirmatively respond" to complaints, Carter said. It appears to preserve "the status quo" where networks can choose what to remove.

The law, however, "fundamentally implicates" the protected speech of social media users by subjecting it to other users' complaints through a state-mandated process, according to the ruling. It's implied by the phrase "hateful conduct prohibited" in the law's title, which "strongly suggests" it could be used to punish users themselves.

It's also unclear what the state considers vilification or humiliation, Carter said, citing possible examples such as posts using the hashtags #BlackLivesMatter or #BlueLivesMatter or "expressing anti-American views," given that one of the protected categories is national origin.

In the Florida case, Judge Dalton rejected Moms for Liberty's challenge to Brevard Public Schools' policy as applied to its members, having earlier rejected their facial challenge.

Under current policy, the board chair has unilateral discretion to "interrupt, warn, or terminate" public comments that are "too lengthy, personally directed, abusive, obscene, or irrelevant" and can "request" commenters who violate "reasonable decorum" to leave. "All statements" must be made to the chair.

The policy was only enforced four times over 10 months against Moms for Liberty members — one of whom was not allowed to finish "inflammatory" and "abusive" remarks — contrasted with more than 100 uninterrupted comments, Dalton said.

Even though the chair reads a "criminal statute that penalizes disruptions" before each meeting, the policy does not impose an "objective chill," as evidenced by Moms for Liberty members continuing to speak, according to the ruling. Their only alleged self-censorship was not addressing board members by name, the judge found, and the only consequence was "brief and respectful" interruptions from the chair.

Dalton noted that other speakers were interrupted for supportive comments that violated the policy, meaning "there is no genuine dispute" the policy was "evenhandedly applied and thus viewpoint-neutral."

The Institute for Free Speech will appeal "based on the full record developed since the preliminary injunction, and it will be subject to a different standard of review," Vice President for Litigation Alan Gura wrote in an email. 

The nonprofit has won three similar cases and just took over another that also failed to get a preliminary injunction, he said.