Federal Judge Uneasy About New York Online Hate Speech Law

The New York attorney general’s office on Monday afternoon defended a new online hate speech law passed in the wake of the racist mass shooting in Buffalo. Critics of the law, including a host of conservative and libertarian websites that sued in federal court to strike it down, say the law violates the First Amendment.

The lead plaintiff in the case is UCLA Law Professor Eugene Volokh, who runs a well-known legal blog that bears his name. Online video sharing site Rumble and anti-Big Tech startup Locals Technology, Inc. also sue. In their complaint, they allege that New York AG Letitia James (D) would enforce the law by trying to “strong-arm online services to censor protected speech.”

US District Judge Andrew Carterof the Southern District of New York, grilled the AG’s lead attorney, Seth Farberabout the gulf between the title of the law and what the statute under New York General Business Law Section 394-ccc actually says.

Although the statute is titled, “Social media networks; prohibits hateful behavior,” Farber said, the law doesn’t actually intend to prohibit any kind of behavior — while acknowledging his own personal confusion about why it was called the way it was.

“The title does not preempt or override what the plain text of the statute does,” the state’s attorney argued. “No hateful conduct as identified by the statute is prohibited by the statute.”

The state attorney has repeatedly insisted that the statute simply requires social media sites to provide a channel to potentially respond to complaints about what is defined as “hateful conduct.”

That term is defined by law in the following way:

“Hateful conduct” means the use of a social media network to defame, humiliate or incite violence against a group or class of persons based on race, colour, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression…

Arguing for the plaintiffs, Foundation for Individual Rights and Expression lawyer Daniel Ortner argued that the law’s title, its text, the floor debate that preceded it, and other factors “all suggest that more is required” than simply a reporting mechanism and that the law’s specifically required mechanism “violates the First Amendment itself .”

Carter, for his part, said he has “concerns” about how the law defines “hateful conduct” and what that definition includes.

The judge said it would be one thing if the law exempted incitement to violence, but expressed some discomfort with how the language relates to certain groups of people.

“To ‘demean or defame’ seems to me to be something protected by the First Amendment,” Carter said.

Ortner went on to say that the law is “clearly focused on speech” and likened the “hateful conduct” mandate to a mandate that websites be forced to provide a way for users to “conservative, liberal, pro-American or anti” to report. -American” speech.

An additional feature of the law is that websites are required to have a policy on how they respond to reports of such hateful behavior – and that this policy is advertised to the website’s users.

Farber said the policy could even be that the website operators do nothing at all — in response to reports of hateful behavior.

“While ‘hateful conduct’ may inform the reports, that is only what the website operator is liable for under this statute … only if they fail to institute the reporting mechanism,” the state attorney argued. “It only sets the minimum of the complaints they have to receive. They don’t even have to read it if they don’t want to.”

Site operators may even say, “we have no policy,” Farber added.

In response, Ortner said it’s hard to see how the law actually works if website owners can say they have no policy at all. The FIRE attorney went on to argue that websites should have the editorial choice not to say anything about “hateful conduct” at all. He added that a website cannot be forced to “apparently agree with” the government’s position on such a controversial topic, or any topic at all.

The plaintiffs’ attorney said that these requirements place a “real burden” on speech and he noted that the Supreme Court has previously held that even a “relatively slight burden” on speech can violate the First Amendment.

Farber insists that the statute did not compel speech, but said that, to the extent that it did, the only compelled speech is a viewpoint-neutral statement of fact that is a viable restriction on commercial speech.

“The definition of ‘hateful conduct’ may be controversial, but how the site responds to it is not,” he argued. “It’s a binary. The amount of calories in a meal is not a position. The policy is not a position. It’s not a compelling position at all.”

The judge later questioned what interest is really justified if website operators can say they have no policy and are not even forced to respond to reports of “hateful conduct” made by users.

The AG’s lead attorney responded that the law essentially created more information for consumers and that such a mandate is “rational” because it allows people to know they can report instances of “hateful behavior” to a website operator and that such users will know what happens, if anything, to such complaints – suggesting a holistic way for consumers to know more about certain websites.

Ortner said the statute is too confusing, too vague and too broad to the point that the definition could include a comedy sketch or other forms of long-protected speech such as parody or satire. He said the end result would be that websites, fearing an investigation, would feel compelled to remove certain speech. The law, he continued, was like a “Sword of Damocles” hanging over websites because it was unclear whether a response was required – despite what the AG’s office argued in court.

“It chills protected activity,” Ortner added.

[image via Michael M. Santiago/Getty Images]

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