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Federal Judge Has First Amendment Concerns About New York State’s Online ‘Hateful Conduct’ Law Targeting Social Media Companies


Letitia James

The New York Attorney General’s Office on Monday afternoon defended a new online hate speech law passed in the aftermath of the racist mass shooting in Buffalo. Critics of the law, including a bevy of conservative and libertarian websites who 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 famous legal blog bearing his name. Also suing are online video sharing website Rumble, and anti-Big Tech startup Locals Technology, Inc. In their complaint, they claim that New York AG Letitia James (D) will enforce the law by trying to “strong-arm online services into censoring protected speech.”

U.S. District Judge Andrew Carter, from the Southern District of New York, grilled the AG’s lead attorney, Seth Farber, on the gulf between the title of the law  and what the statute located under New York General Business Law Section 394-ccc actually says.

Though the statute is titled, “Social media networks; hateful conduct prohibited,” Farber said, the law does not actually purport to prohibit any kind of conduct at all – while admitting his own personal confusion as to why it was named the way it is named.

“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 went on to repeatedly insist the statute simply requires social media websites provide a channel to potentially respond to complaints about what is defined as “hateful conduct.”

That term is defined in the following way by the law:

“Hateful conduct” means 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…

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

Carter, for his part, said he had “concern” about how the law defines “hateful conduct” and what that definition encapsulates.

The judge said it would be one thing if the law singled out the incitement of violence but expressed some uneasiness about how the language relates to certain groups of people.

“To ‘humiliate or vilify’ seems to me to be something that’s protected by the First Amendment,” Carter said.

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

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

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

“While ‘hateful conduct’ may inform the reports, as far as what the website operator may be liable for under this statute…is only if they don’t set up the reporting mechanism,” the state’s attorney argued. “That just sets the minimum of the complaints that they have to receive. They don’t even have to read them if they don’t want to.”

Website operators can even say, “we have no policy,” Farber added.

Ortner, in response, said that it was difficult to see how the law actually operates 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 “appear to 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 even a “relatively minor burden” on speech can violate the First Amendment.

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

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

The judge later took issue with what interest was really being vindicated if website operators could say they have no policy and weren’t 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 forward instances of “hateful conduct” to a website operator and that such users will know what happens, if anything, with such complaints – suggesting a holistic way for consumers to know more about certain websites.

Ortner said the statute was too confusing, too vague, and over-broad to the point that the definition could include a comedy sketch or other forms of long-protected speech like 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’s unclear if a response is required – despite what the AG’s office was arguing in court.

“It chills protected activity,” Ortner added.

[image via Michael M. Santiago/Getty Images]

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