Federal Court Strikes Down State’s Social Media Hate Speech Requirement

New York Attorney General Letitia James speaks after being sworn into office during Gov. Kathy Hochul's inauguration ceremony, Sunday, Jan. 1, 2023, in Albany, N.Y. (AP Photo/Hans Pennink)

Enforcement of a law requiring social media companies to better police potential hate speech has been struck down by a federal court.

The lawsuit — Eugene Volokh, Locals Technology Inc. and Rumble Canada Inc. v. Letitia James — alleged A.7865A/S.4511 infringes on First Amendment freedom of speech by requiring social media networks conducting business in New York to provide and maintain a clear and easily accessible mechanism for individual users to report and make complaints of hateful conduct.

“The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal,” wrote U.S. District Court Andrew Carter in his decision on Feb. 14. “In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, plaintiffs’ motion for preliminary injunction prohibiting enforcement of the law, is granted.”


The state law defines as hate speech meant 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. The law also requires each social media network have to create a clear and concise policy that includes how a social media network will respond and address incidents of hateful conduct which have been reported. The law also gave the state Attorney General’s office the power to investigate violations. Companies violating the law could have faced fine of up to $1,000 a day.

Volokh and social media companies Rumble and Locals filed a federal lawsuit in December when the law was to take effect, alleging the state couldn’t require social media companies to disseminate the state’s message about the definitions of hate speech. Judge Andrew Carter, who was appointed to the federal bench by President Barack Obama and recommended for judgeship by Sen. Charles Schumer, wrote in his decision that the Volokh, Rumble and Locals have an editorial right to keep certain information off their websites, with those editorial decisions protected by the First Amendment. New York’s required statements’ regarding hate speech, in Carter’s opinion, deprives the right to speak freely on matters of public concern without state coercion.

“Here, the Hateful Conduct Law requires social media networks to disseminate a message about the definition of ‘hateful conduct’ or hate speech — a fraught and heavily debated topic today,” Carter wrote in his decision. “Even though the Hateful Conduct Law ostensibly does not dictate what a social media website’s response to a complaint must be and does not even require that the networks respond to any complaints or take down offensive material, the dissemination of a policy about “hateful conduct” forces Plaintiffs to publish a message with which they disagree. Thus, the Hateful Conduct Law places Plaintiffs in the incongruous position of stating that they promote an explicit “pro-free speech” ethos, but also requires them to enact a policy allowing users to complain about “hateful conduct” as defined by the state.”


A memorandum in support of the legislation states the new law will make clear nothing shall be construed as adversely affecting the rights and freedoms of any person to exercise their First Amendment right. But Assemblyman Andrew Goodell, R-Jamestown, and other Republicans argued on the Assembly floor last June that the legislation raised significant First Amendment issues. Goodell said the bill regulates three types of speech — that which vilifies, that which humiliates and that which incites violence. Speech that vilifies or humiliates have long been protected by the First Amendment, while courts have long held speech that incites violence is not protected by the First Amendment.

It’s a message with which Judge Carter agreed, ruling the state’s interest in preventing mass shootings – the legislation was passed in the wake of the May shooting at a Tops supermarket in Buffalo — does not survive the strict scrutiny test used by judges in First Amendment cases and is not narrowly tailored enough to justify its infringement on free speech.

“While the OAG investigative report does make a link between misinformation on the internet and the radicalization of the Buffalo mass shooter, even if the law was truly aimed at reducing the instances of hate-fueled mass shootings, the law is not narrowly tailored toward reaching that goal,” Carter wrote. “It is unclear what, if any, effect a mechanism that allows users to report hateful conduct on social media networks would have on reducing mass shootings, especially when the law does not even require that social media companies affirmatively respond to any complaints of ‘hateful conduct.’ In other words, it is hard to see how the law really changes the status quo — where some social media networks choose to identify and remove hateful conduct and others do not.”


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