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State Seeks To Require Social Media Regulation Of Hate Speech

Payton Gendron is led into the courtroom for a hearing at Erie County Court in Buffalo on Thursday. Gendron faces charges in the May 14 fatal shooting at a supermarket. AP photo

Democrats in the state Assembly are taking aim at hate speech posted on social media — particularly after the posting of a 180-page document in the hours before the shooting that killed 10 people in Buffalo in mid-May.

A divided Assembly approved A.7865 in a 112-37 vote earlier this week. Assemblyman Andrew Goodell, R-Jamestown, and Assemblyman Joe Giglio, R-Gowanda, both voted against the proposal. Companion legislation was scheduled for a Thursday vote and was expected to be approved.

The legislation requires social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform. It defines hateful conduct to mean the 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.

“There are roughly 5 billion social media posts done daily,” said Assemblywoman Patricia Fahy, D-Albany. “We need the help of those social media companies. We know just from the horror of the Buffalo shooter, that massacre just two weeks ago, there was a 180-page document filed online before that massacre. Enough is enough. In 2020, well before this, the State Department said racist violence is on the rise and spreading, increasingly targeting minority groups such as ethnic groups, racial minorities and LGBTQ and other ‘perceived enemies.’ We need a multi-prong approach. That’s what much of our work has been about these last few days.”

Fahy’s legislation requires a social media network that conducts 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 mechanisms must be clearly accessible to users, must be easily accessed from both apps and websites, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct. Each social media network will have to create a clear and concise policy that includes how a social media network will respond and address incidents of hateful conduct that have been reported. Any social media platform that knowingly fails to comply can be fined $1,000 a day.

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 Goodell and other Republicans argued on the Assembly floor that it still raises significant First Amendment issues. Goodell said the bill regulates three types of speech — that which villifies, that which humiliates and that which incites violence. Speech that villifies 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.

“I urge my colleagues, make no mistake about it, this is a bill that purports to regulate speech and, in doing so, it needs to be narrowly tailored to make a strong, legitimate interest of government or it is invalid,” Goodell said, referring to a standard first articulated by the Supreme Court in Korematsu v. United States in 1944. “Nobody here in this room, I don’t think, supports hateful speech. I hope nobody intentionally uses speech that humiliates or embarrasses anyone else or villifies anyone else, I think that’s inappropriate. I also recall, as all of us do as politicians, we are the subject of that speech on a regular basis and that is one of the natures of our democracy that we allow uncomfortable speech and we don’t leave it to a foreign corporation to decide what speech is truly uncomfortable or too humiliating or too vilifying. That’s not a role for us to do as a state, to appoint private companies to be automatic censors of language that we ourselves are uncomfortable with.”

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