New York Considers Legislation to Curtail Free Speech in the Name of Democracy

The great civil libertarian Justice Louis Brandeis once warned that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” New York State Democrat Senator Brad Holyman is one of those “men of zeal.” With the approaching anniversary of the Jan. 6th riots, he has proposed a new law that would legislate an even greater level of censorship to prevent the “social media amplification” of views that are deemed harmful or “disinformation.”  It is only the latest example of our “whatever it takes” politics.

Under S.7568, there would be criminal liability for anyone who makes “a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.” 

If this language is chilling for anyone who values free speech, Hoylman’s defense will freeze you to the bone. It is a censorship measure introduced on “the anniversary of the notorious January 6 insurrection at the U.S. Capitol, and as vaccine hesitancy continues to fuel the Omicron variant.” It is a mix of algorithmic conspiracy theory and anti-free speech doublespeak:

“Social media algorithms are specially programmed to spread disinformation and hate speech at the expense of the public good. The prioritization of this type of content has real life costs to public health and safety.  So when social media push anti-vaccine falsehoods and help domestic terrorists plan a riot at the U.S.  Capitol, they must be held accountable. Our new legislation will force social media companies to be held accountable for the dangers they promote.”

For years, social companies have claimed protection from any legal consequences of their actions relating to content on their websites by hiding behind Section 230 of the Communications Decency Act. Social media websites are no longer simply a host for their users’ content, however. Many social media companies employ complex algorithms designed to put the most controversial and provocative content in front of users as much as possible. These algorithms drive engagement with their platform, keep users hooked, and increase profits. Social media companies employing these algorithms are not an impassive forum for the exchange of ideas; they are active participants in the conversation.”

The rationale is perfectly Orwellian. It treats the failure to censor as being a participant in “disinformation.”

This is only the latest anti-free speech measure to be introduced on the federal or state levels. In one critical hearing, tech CEOs appeared before the Senate to discuss censorship programs. Twitter CEO Jack Dorsey apologized for censoring the Hunter Biden laptop story, but then pledged to censor more people in defense of “electoral integrity.”

Delaware Sen. Chris Coons, however, was not happy. He was upset not by the promised censorship but that it was not broad enough. He noted that it was hard to define the problem of “misleading information,” but the companies had to impose a sweeping system to combat the “harm” of misinformation on climate change as well as other areas. “The pandemic and misinformation about COVID-19, manipulated media also cause harm,” Coons said. “But I’d urge you to reconsider that because helping to disseminate climate denialism, in my view, further facilitates and accelerates one of the greatest existential threats to our world.”

Connecticut Sen. Richard Blumenthal also warned that he and his colleagues would not tolerate any “backsliding or retrenching” by “failing to take action against dangerous disinformation.” He demanded “the same kind of robust content modification” from the companies – the new Orwellian term for censorship.

In the meantime, Facebook is continuing its creepy corporate commercials to try to convince a free people to embrace censorship (or “content modification”).  It is working. Free speech advocates are facing a generational shift that is now being reflected in our law schools, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that “China is right” about censorship, these figures are shaping a new society in their own intolerant images.

The New York legislation would gut free speech by creating criminal penalties for views deemed “false” despite the continuing debates over issues like the efficacy of masks or vaccine protocols. The First Amendment is premised on the belief that this right is essential to protecting the other freedoms in the Constitution. It is the right that allows people to challenge their government and others on electoral issues, public health issues, and other controversies.

This is why I have described myself as an Internet Originalist:

The alternative is “internet originalism” — no censorship. If social media companies returned to their original roles, there would be no slippery slope of political bias or opportunism; they would assume the same status as telephone companies. We do not need companies to protect us from harmful or “misleading” thoughts. The solution to bad speech is more speech, not approved speech.

If Pelosi demanded that Verizon or Sprint interrupt calls to stop people saying false or misleading things, the public would be outraged. Twitter serves the same communicative function between consenting parties; it simply allows thousands of people to participate in such digital exchanges. Those people do not sign up to exchange thoughts only to have Dorsey or some other internet overlord monitor their conversations and “protect” them from errant or harmful thoughts.

The danger of the rising levels of censorship is far greater than the dangers of such absurd claims of the law or science — or in this case both. What we can do is to maximize the free discourse and expression on the Internet to allow free speech itself to be the ultimate disinfectant of disinformation.

59 thoughts on “New York Considers Legislation to Curtail Free Speech in the Name of Democracy”

  1. Americans spent billions of dollars on hand sensitizer and masks that didn’t work and not needed – according to recent 2021 news reports. Those statements would be criminalized under this law.

    More than 90% of Guantanamo detainees had zero connection to any terrorism and were called “the worst of the worst” after 9/11 – those statements would be criminalized under this law.

    More than 90% of Espionage Act investigations, prosecutions and defamation were also false. Most were non-spies like journalists. Those cases would be criminal under this law.

  2. America is a “constitutional democratic republic” – the word “republic” is the noun. We are not a “pure democracy” which James Madison termed the “tyranny of the majority”.

  3. New York State Democrat Senator Brad Holyman has either never read the US/NYS Constitutions or his level of reading comprehension is severely lacking which in turn should disqualify him from running for an elected office or attaining a position of authority within government.

  4. The choice on speech for America was made 232 years ago. No rewrite is necessary or appropriate. All men were created equal and all men, presumably, are capable of discerning fact from fiction; all men are capable of taking speech “with a grain of salt.” Certainly, the onus is on them, not the Constitution. The actual crime herein seems to be subversion of and treason against the Constitution and the United States.

    If any person can provide probable cause of a crime of property damage, bodily injury or intoxication through the enjoyment of the freedom of speech, the ill-speaking perpetrator must be arrested and prosecuted to the fullest extent of the law, and with extreme prejudice, for Assault, Battery or Intoxication by Spoken or Written Word. Alternatively, the propagator of ostensibly malicious and deleterious verbiage must be ostracized and ignored.

    The proposed law is not within the American thesis, but an imposition of the “dictatorship of the proletariat” per the Communist Manifesto. The proposed law would illicitly amend the 2nd Amendment of the Constitution and must be immediately struck down and declared void by the judicial branch. “Congress shall make no law…abridging the freedom of speech,…” is the manifest tenor of the Constitution, and the law proposed by Brad Holyman must be declared void according to Alexander Hamilton. Holyman should be availed of an immediate lateral transfer to the Post Office to wrap up his career.

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

    1st Amendment

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    1. George, since you did not cite the 14th amendment or the Supreme Court incorporation doctrine, just wondering how you are reading the constitution to apply the first amendment to a state law? Thanks.

      1. “…nor deny to any person within its jurisdiction the equal protection of the laws.”

        There is no there there. The Framers did not include the denial of anything to any person, therefore, it is an inane exercise in futility and simply incoherent to assure equal protection, which has existed innately since 1789, when the Constitution was ratified.

        The judicial branch has no power to legislate, modify legislation, or modify legislation by “interpretation.” The “incorporation doctrine” is illegal and unconstitutional and, at least, an act of semantic treason on the part of the originating and perpetuating Justices.

        More fundamentally and importantly, no American should hold the “Reconstruction Amendments” as legitimate in any way. “Crazy Abe” Lincoln et al. totally ignored law after his fraudulent, 39.8% “victory” in 1860, but his successors expected the Americans they subjected to heinous tyranny to obey law. Lincoln’s lesson to Americans was: Break the law whenever you disagree with it. It is preposterous and impossible to expect anyone to respect the “Reconstruction Amendments” which were improperly ratified in an environment of brutal, post-war military occupation after the barbarous war Lincoln prosecuted against Americans. Lincoln essentially allied with Karl Marx to overthrow the government of the United States, denied fully constitutional secession, seized power after unconstitutionally imposing martial law, suspended habeas corpus after he was told that the Constitution prohibits it by the Chief Justice of the Supreme Court, Roger B. Taney. To make matters worse, Lincoln commenced the election corruption and vote tampering we see to this day by, again, ignoring and not obeying the law, immigration law, the Naturalization Act of 1802, which required citizens to be “…free white person(s)…” forcing Lincoln to compassionately repatriate, or deport, freed slaves, as, ultimately, Lincoln allowed 3.5 million illegal aliens to vote, illicitly, corruptly and dramatically shifting elections to communists (liberals, progressives, socialists, democrats, RINOs). Lincoln was a disloyal traitor to the Constitution, the United States and Americans, as he was faithful to his ideological hero, Karl Marx, understanding that unsavory slavery should have been eliminated through constitutional means such as advocacy, boycotts, divestiture, etc., in the free markets of ideas.

        14th Amendment

        Article 1

        All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      2. As I mentioned previously, in celebration of the 100th anniversary of Lincoln and, his informal ally, Karl Marx’s “Reign of Terror” and ballot creation and harvesting conspiracy, engendered by Lincoln’s failure to compassionately repatriate freed slaves who were illegal aliens due to contemporary immigration law, Lyndon Baines Johnson perpetuated Lincoln’s election corruption and vote tampering by paying, to this day, $22+ Trillion for the “Great Society” and “War on Poverty” (poverty won), and for the “black vote.”

        “I’ll have those ——s voting democratic for the next 200 years.”

        – Lyndon Baines Johnson

        “Crazy Abe” Lincoln and Lyndon Baines Johnson did precisely that.

  5. Now you know why Lyndon Baines Johnson endeavored mightily to assure that “I’ll have those n****** voting Democratic for the next 200 years.” LBJ perpetuated the election corruption and vote tampering begun under General Secretary and Head Tyrant & Dictator, “Crazy Abe” Lincoln, America’s first communist 38.9% president, whose successors unconstitutionally granted the vote to 3.5 million illegal aliens who, rather than being allowed to participate in an American election, must have been deported per the Naturalization Act of 1802, in full force and effect in 1863, requiring immigrants to be “…free white person(s)….”

    Ah, yes, a society of laws.

  6. Under Comrade Brad Holyman’s proposed law, Anthony “350K Retirement” Fauci would be thrown in prison by sundown.

    Wait, if the Apparatchik and Caricature of a Bloated Bureaucrat, Antonio Fauci were in prison, American taxpayers wouldn’t have to pay his retirement, right?

  7. Professor Turley, While I understand that you oppose the proposed NY legislation on free speech grounds, do you think it is unconstitutional under first and 14th amendment? Thanks.

    1. I believe it is unconstitutional. There are a number of categories of speech that are not protected by the first amendment. Except for truth in advertising, defamation/libel and similar laws, speech being false generally does not exclude it from constitutional protection.

  8. The idea is preposterous. Stupid, anti constitutional (congress shall make no law). But is focused on conveying information.

    What are they going to do about silencing truth? John Soleman just got banned from twitter for and article that explains FDA emergency use labels.

    Leftist’s only path to long term survival, is keeping more the 1/2 the people uninformed or misinformed.

    1. when people are being misinformed by the people you defend, causing more harm than good, then limiting speech in some areas of the internet is definitely a better solution than letting that misinformation of false quotes and ideas spread as fast as the actual virus.

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