FIRE Challenges New York’s Attempt To Police Internet Hate Speech

Not that it applies here, as SJ does not exist for “profit-making purposes,”* but the New York lege enacted a new law that would require any website that allows users to post public comments to become the hate speech police by calling it “hateful conduct” rather than hate speech, which is fully protected by the First Amendment and for which liability is precluded by Section 230 of the Communications Decency Act. Not that New York cared.

The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.

New York’s law doesn’t define “vilify,” “humiliate,” or “incite.” Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law’s scope entirely subjective.

On the one hand, the law essentially leaves it to the complainer to decide what falls within its stricture. It someone feels something vilifies or humiliates someone or group, that’s close enough. On the other hand, the law requires a policy be crafted, a mechanism to complain and a “direct response,” whatever that means. It doesn’t say that the response must fix or satisfy the complainer, but merely respond. In other words, the law would putatively be satisfied by the Moonstruck “direct response.”

Despite the shockingly bad language of the law, it appears that Tish James has plans to make sure that bloggers and websites become enforcers of her flavor of hate speech.

There can be no reasonable doubt New York will enforce the Online Hate Speech Law to strongarm online services into censoring protected speech. The Attorney Generals intentions, in fact, could not be clearer; as recited, for example, in an October press release, the Attorney General declared that [o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”

That the law is otherwise a pointless and pathetic effort to turn bloggers and websites into New York AG Tish James’ hate speech police doesn’t change the fact that the law is a flagrant violation of the First Amendment despite the cutesy effort to characterize hate speech as “hateful conduct.”

Thankfully, FIRE, the Foundation for Individual Rights and Expression, has taken the lead in challenging this misbegotten law. The law is scheduled to go into effect December 3, 2022. Even though it does not apply to SJ, and I already have a means to complain on the side bar, it’s very much appreciated that FIRE attorneys Daniel Ortner. Jay Diaz and Eugene are doing the heavy lifting to challenge this mutt of a law.

*I was initially asked to be a plaintiff in the action, but since this blawg does not exist for profit-making purposes, my position is that I would not have had standing to challenge the law. It also struck me that, as a criminal defense lawyer, inviting the attorney general to seek discovery of my finances and practice put my clients at risk, something I cannot do. Thankfully, Eugene Volokh was willing to step forward to serve as named plaintiff.