Like many attacks on free speech, the New York law came in response to a tragedy. On May 14, 2022, an avowed white supremacist killed ten people and wounded three others in Buffalo, New York. He used Twitch to livestream his attack on the Black shoppers.
Governor Kathy Hochul immediately used the massacre to renew attacks on social media companies and to demand new regulations of speech. She directed the Office of the Attorney General (“OAG”) to investigate “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting” and to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.”
She also went public with a declaration that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because the alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”
The result of Hochul’s call was The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited” that went into effect on December 3, 2022. The law defines “hateful conduct” as
“[T]he use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.”
N.Y. Gen. Bus. Law § 394-ccc(1)(a). The underlying “conduct” of vilification, humiliation, or incitement is left undefined, but it falls within the scope of the law if it is directed toward an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression.”
Thus, the law requires all social media companies to have (1) a mechanism for social media users to file complaints about instances of “hateful conduct” and (2) to publish the social media network’s policy for how it will respond to any such complaints.
The court found that there is “clear or substantial likelihood of success on the merits” given the abridgment of First Amendment rights. Notably, after passing this law to great fanfare and acclaim, the court noted that the state “concedes that the Hateful Conduct Law may not be able to withstand strict scrutiny.” Indeed, it cannot. Yet, that did not stop Hochul and the legislature from passing a blatantly unconstitutional law.
Judge Carter writes:
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Matal v. Tam (2017).
The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of “hateful conduct”. The law also requires that a social media network must make a “policy” available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.
…[T]he Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”. To be in compliance with the law’s requirements, a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3). Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network’s policy must define “hateful conduct” as conduct which tends to “vilify, humiliate, or incite violence” “on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). A social media network that devises its own definition of “hateful conduct” would risk being in violation of the law and thus subject to its enforcement provision.
The Court does reject the claims of the plaintiffs that the law is preempted by Section 230 of the Communications Decency Act. However, it is a moot point given the unconstitutionality of the law.
What is most troubling about this law is not that the state has again sought to violate the constitutional rights of citizens or companies. It is that it will not matter to voters. Hochul and state legislators knew that there will be no political costs for passing laws that violate the First Amendment. Today, free speech is often portrayed as harmful and even a threat to democracy.
Indeed, anti-free speech sites like Above the Law previously mocked the lawsuit and suggested that the plaintiffs were made to look like fools in court. Volokh and others were denounced as fighting for hate speech while others like “Trans folks . . . have been suffering the joys of ‘free speech.'” The site described arguments made before Carter as simply embarrassing and told readers that “[t]he best thing about this is that those in opposition of the law are clearly grabbing at straws.” It appears that, despite what Above the Law viewed as silly arguments in court, those plaintiffs and their lawyers just secured a sweeping First Amendment victory.
One would hope that citizens would be outraged when their leaders seek to limit their constitutional rights. The opposite will be true. This stinging loss will be met with the appreciation of many in the public for having tried to limit free speech in the name of fighting hate.
Congratulations to Professor Eugene Volokh, Rumble, and their counsel (including Foundation for Individual Rights and Expression attorney Daniel Ortner) for securing this important victory.
Here is the opinion: Volokh v. James