A judge has blocked a New York law that attempted to regulate “hateful conduct” online.
The legislative package, signed into law last summer, was Gov. Kathy Hochul’s attempt to force the moderation of content under nebulous terms such as “hate.”
The bill required, “social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform.” It defined hateful conduct broadly as, “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.”
The law also said that platforms must have a “clear and concise policy readily available and accessible on their website and application which includes how such social media network[s] will respond and address the reports of incidents of hateful conduct on their platform[s].”
The law was challenged by the free speech video platform Rumble, alongside FIRE, the Foundation for Individual Rights and Expression, and First Amendment legal scholar Eugene Volokh, primarily on First Amendment grounds.
On Tuesday, Judge Andrew L. Carter, Jr. (S.D.N.Y.) blocked the law. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” the court wrote.
We obtained a copy of the order for you here.
Judge Carter ruled that the law was a violation of the First Amendment. “The First Amendment protects from state regulation speech that may be deemed ‘hateful,’” the court wrote, “and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest.”
The court added that the law, “chills the constitutionally protected speech of social media users,” adding “social media websites are publishers and curators of speech, and their users are engaged in speech by writing, posting, and creating content. Although the law ostensibly is aimed at social media networks, it fundamentally implicates the speech of the networks’ users by mandating a policy and mechanism by which users can complain about other users’ protected speech.”
The court highlighted the ways in which the law violated the First Amendment, saying, “the law also requires that a social media network must make a ‘policy’ available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.”
The other factor considered by the court was that the law “requires a social media network to endorse the state’s message about ‘hateful conduct’” – another First Amendment violation.
“Implicit in this language is that each social media network’s definition of ‘hateful conduct’ must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network’s policy must define ‘hateful conduct’ as conduct which tends to ‘vilify, humiliate, or incite violence’ ‘on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.’”
The court singled out how the law would have forced free speech platforms such as Rumble “whose websites have dedicated ‘pro-free speech purpose[s],’ which likely attract users who are ‘opposed to censorship’” to “speak about hateful conduct.” This would be a form of compelled speech.
The court ruled that Rumble has, “an editorial right to keep certain information off their websites and to make decisions as to the sort of community they would like to foster on their platforms. It is well-established that a private entity has an ability to make ‘choices about whether, to what extent, and in what manner it will disseminate speech…’”
“The founding fathers would be proud today,” Rumble CEO Chris Pavlovski tweeted. “Rumble’s legal team is next level amazing.”
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Reclaim The Net is a free speech and online privacy organization that defends our individual liberty by pushing back against big tech and media gatekeepers. Much of their work focuses on exposing digital tyrants and promoting free speech and privacy-friendly alternative online services. Visit reclaimthenet.org