A federal judge recently issued a preliminary injunction against a New York state law that implicates hate speech, saying it violates Americans’ constitutionally-protected First Amendment rights.
New York General Business Law Section 394-ccc, also referred to as the Hateful Conduct Law, came into effect on Dec. 3, 2022. It compels platforms to “provide and maintain mechanisms for reporting hateful conduct on their platform.” It also empowers New York’s attorney general to assess a fine of up to $1,000 per day on platforms that don’t comply.
In his ruling on Feb. 14, Carter, an Obama appointee, determined that the Hateful Conduct Law is “clearly aimed at regulating speech” and “fundamentally implicates the speech of the networks’ users by mandating a policy and mechanism by which users can complain about other users’ protected speech.”
“[T]he First Amendment protects individuals’ right to engage in hate speech, and the state cannot try to inhibit that right, no matter how unseemly or offensive that speech may be to the general public or the state,” Carter added.
Law Passed in Wake of Buffalo Shooting
The law was passed by New York’s legislature in June 2022 after a mass shooting in Buffalo in May 2022 that killed 10 black people. The shooting was live-streamed by the killer on the social media platform Twitch.New York Gov. Kathy Hochul subsequently directed Attorney General Letitia James to probe the role of social media platforms in broadcasting the shooting, after which James issued a report that concluded the Buffalo shooter had been “radicalized” by social media platforms. The report also said that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms.”
“Although preventing and reducing the instances of hate-fueled mass shootings is certainly a compelling governmental interest, the law is not narrowly tailored toward that end,” Carter wrote in his ruling on Feb. 14. “Banning conduct that incites violence is not protected by the First Amendment, but this law goes far beyond that.”
He added: "While the [Office of the Attorney General] 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.
‘Not Clear’
Carter noted that the law uses vague terms, which exacerbates its chilling effect.“It is not clear what the terms like ‘vilify’ and ‘humiliate’ mean for the purposes of the law. While it is true that there are readily accessible dictionary definitions of those words, the law does not define what type of ‘conduct’ or ’speech' could be encapsulated by them,” according to Carter.
“For example, could a post using the hashtag ‘BlackLivesMatter’ or ‘BlueLivesMatter’ be considered ‘hateful conduct’ under the law?
“Likewise, could social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group based on national origin? It is not clear from the face of the text, and thus the law does not put social media users on notice of what kinds of speech or content is now the target of government regulation.”
The Foundation for Individual Rights and Expression (FIRE), which is representing the plaintiffs, celebrated Carter’s decision.
“New York’s vague and overbroad law sought to stifle robust debate on the internet,” FIRE attorney Daniel Ortner said in a statement. He said Carter’s decision was “a victory for the First Amendment that should be celebrated by everyone who hopes to see the internet continue as a place where even difficult and contentious issues can be debated and discussed freely.”
Volokh said in a statement: “New York tried to single out particular ideological viewpoints by requiring me and other platform operators to have policies for dealing with those viewpoints.
“That’s just as unconstitutional as the government targeting ‘unpatriotic’ speech or anti-police speech or whatever else. I’m grateful that this decision makes clear that such viewpoint-based attempts at government regulation are unconstitutional.”