China on the Hudson

It’s not so far from ottowa to AlbANY

Reader “Just More of the Same” just brought this WS opinion piece by constitutional law scholar Eugene Volokh to my attention:

New York State wants to conscript me to violate the Constitution

New York politicians are slapping a badge on my chest. A law going into effect Saturday requires social-media networks, including any site that allows comments, to publish a plan for responding to alleged hate speech by users.

The law blog I run fits the bill, so the law will mandate that I post publicly my policy for responding to comments that “vilify, humiliate, or incite violence against a group” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It also requires that I give readers a way to complain about my blog’s content and obligates me to respond directly.

I don’t want to moderate such content and I don’t endorse the state’s definition of hate speech. I do sometimes delete comments, but I do it based on my own editorial judgment, not state command. Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.

The Supreme Court has carved out several narrow categories of unprotected speech, but hate speech isn’t one of them. Speech is protected except in the case of fighting words, true threats, defamation or incitement, and these exceptions are applied without regard to whether the speech in question is hateful. The court has wisely recognized that each of us has a different idea of what constitutes good or bad speech—and we can’t trust the government to decide which viewpoints are too hateful to merit legal protection.

But that’s not stopping New York from trying. The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can “vilify, humiliate, or incite violence against” groups based on protected class, even if that speech is protected by the First Amendment.

Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?

Nobody knows. But New York is imposing legal obligations on me and other platforms to pressure us to censor such speech. And though the New York law doesn’t itself require the removal of such speech, that may be the ultimate goal. Such censorship fits neatly within Attorney General Letitia James’s recent report that calls for sweeping regulations compelling further restrictions on speech the state considers hateful.

This is wrong, regardless of the viewpoint the state wants to eradicate. A law mandating a mechanism to report comments that vilify or humiliate the police, military or ordinary civilians would be similarly unconstitutional. Politicians can’t conscript private individuals into a state-mandated, viewpoint-based complaint system, especially for protected speech.

The Professor and several other free speech advocates and organizations are suing, not surprisingly.

….. I started the Volokh Conspiracy to share interesting and important legal stories, not to police readers’ speech at the government’s behest. By challenging this law, I hope I can put down the badge and go back to my keyboard—because legislators can fight crime and respond to hate without violating the First Amendment or drafting me into the speech police.

Mr. Volokh is a co-founder of the Volokh Conspiracy blog and a law professor at the University of California, Los Angeles.

I’d never heard of this upcoming law, so I looked it up. Pretty frightening, and though I’m guessing it will eventually be struck down as the grossly unconstitutional piece of speech suppression that it is, I’m also aware that 80% of the current crop of 18-25-yar-olds favors this sort of thing, and they will soon be in control. I suspect this as being just a first test, an attempt to throw some spaghetti on the wall and see what sticks; they’ll learn from it, and come back.

All social media platforms that operate in New York State will now be required to spot and report “hateful conduct” as part of a 10-bill legislative package designed to tighten gun laws that was signed into law by Governor Hochul.

The bill on social media monitoring — Senate Bill S4511A, in legislative parlance — includes the most significant changes to New York gun laws in a generation. It seeks to limit the proliferation of online hate of the kind espoused by the Buffalo gunman, who shared a racist post online before the mass shooting in May.

“My legislation will empower social media users to keep virtual spaces safer for all by providing clear and consistent reporting mechanisms to flag hate speech,” the Democratic state senator who introduced the bill in Albany, Anna Kaplan, said after it was signed.

The bill received bipartisan support in both the senate and on the assembly floor, with 60 votes of support and 3 votes against the bill in the senate.

“The mass shooting in Buffalo was a tragic reminder of how powerful social media can be in spreading hateful, dangerous ideologies online,” Congressman Sean Maloney told the Sun. “It is important that we have better methods for addressing threats on social media.”

The bill was in part an attempt to address glitches in Facebook’s policy against hate speech, which at the time it was written last year only allowed users to report hate speech from its website, not its app. Indeed, a 2021 report by the Wall Street Journal declared Facebook’s application of its own community standards opaque and inconsistent. It now appears to allow users to report hate speech from its app.

Ms. Kaplan’s bill aims to resolve these discrepancies by requiring social media networks to establish an easily accessible procedure for users to report hateful posts. It seeks to apply the expression, “If you see something, say something,” to the digital world.

“This is a new concept bill,” Ms. Kaplan’s communication director, Sean Ross Collins-Sweeney, told the Sun. “I don’t know that anyone else has done it before.”

Related: Twitter’s Elon Musk Is Now Gavin Newsom’s Main ‘Target.’