A law professor at UCLA has sued New York State to stop it from enforcing its new “Online Hate Speech Law” against his blog.
The Foundation for Individual Rights and Expression filed a lawsuit on behalf of UCLA law Professor Eugene Volokh, founder of the legal blog “The Volokh Conspiracy.” Other plaintiffs include social media platforms Rumble and Locals.
The law “requires social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform,” according to the state senate website’s summary.
Here is the press release last week from the Foundation for Individual Rights and Expression:
Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.
The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like—even if that speech is fully protected by the First Amendment.
“New York politicians are slapping a speech-police badge on my chest because I run a blog,” said plaintiff Eugene Volokh, who co-founded The Volokh Conspiracy legal blog in 2002. “I started the blog to share interesting and important legal stories, not to police readers’ speech at the government’s behest.”
The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.
New York’s law doesn’t define “vilify,” “humiliate,” or “incite.” Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law’s scope entirely subjective. (The First Amendment does not protect inciting imminent violence, but New York’s law offers no indication, as the First Amendment requires, that it applies only to speech directed to and likely to produce imminent lawless action.)
What expression could the new law reach? Plenty of speech fully protected by the First Amendment, including but not at all limited to:
- An atheist’s post “vilifying” people of faith by criticizing religion.
- A posted video of John Oliver “humiliating” the British people by criticizing the monarchy.
- A comedian’s blog entry “vilifying” men by mocking gender stereotypes.
- A post about Kathy Griffin “humiliating” Christians by shouting “Suck it, Jesus, this award is my God now!” at an awards show.
- Your comment on almost any website that could be considered by someone, somewhere, at some point in time, as “humiliating” or “vilifying” a group based on protected class status like religion, gender, or race.
“The state of New York can’t turn bloggers into Big Brother, but it’s trying to do just that,” said FIRE attorney Daniel Ortner. “The government can’t burden online expression protected by the Constitution, whether it’s doing it in the name of combating hate or any other sentiment. Imagine a similar law requiring sites to publish a reporting policy for speech the state considers un-American—that would be just as unconstitutional.”
Volokh, a constitutional law professor and First Amendment expert, is joined in the lawsuit by online platforms Rumble and Locals, which are, respectively, a video platform similar to YouTube, and a community-building platform that allows creators to connect directly with their audience.
Bloggers, commenters, websites, and apps around the country are ensnared by the New York law due to its broad definition of “social media networks” as for-profit “service providers” that “enable users to share any content.” This vague wording means that the law can impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers—but no government entity can legally compel blogs or other internet platforms to adopt its broad definition of “hateful conduct.”
A recent report issued by Attorney General James’ office shows this law may be just the start of Empire State lawmaker’s attempt to silence protected speech online. Released in the wake of May’s tragic mass shooting by a white supremacist at a Buffalo supermarket, the report calls for further regulation of online speech—recommendations that, if adopted, would also violate the First Amendment.
“What happened in Buffalo broke the nation’s heart, and the impulse to take action is understandable. But violating expressive rights online won’t make us safer,” said FIRE senior attorney Jay Diaz. “In the name of combating ‘hateful conduct,’ New York’s new law reaches a vast amount of everyday commentary—jokes, political debates, random commentary, you name it. That’s a problem. The First Amendment protects all of us, and this new law doesn’t.” …
New York Governor Kathy Hochul signed the legislation and it went into effect on December 3.
“New York’s law violates the First Amendment in several respects,” says FIRE lawyer Daniel Ortner. “This is a pretty blatant attempt by the State of New York to pressure social media networks to remove constitutionally protected speech that the state deems as hateful. We are therefore confident about the lawsuit..This law impacts pretty much any website or online service accessed by New Yorkers where users can share content or that has a comment section. This includes everything from blogs like the Volokh Conspiracy to larger social media platforms like Rumble. So the law is going to have a wide impact requiring all of these sites to post a hate speech policy, create a report and response mechanism, and to reply to complaints.”
The court will hear arguments about whether to grant a preliminary injunction against the law on December 19.
It defines “hateful conduct” as “the use of a social media network to vilify, humiliate, or incite violence against a group or class or persons on the basis of [a protected class such as race, color, religion, or sex].”
“A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct,” the law says.
“Social media networks” include websites of many sorts. The law defines them to include “service providers, which, for profit-making purposes, operate internet platforms that are designed to enable users to share any content with other users or to make such content available to the public.”
“Hate speech” is a misleading phrase, and it’s no longer just about hate. Even things like expert medical opinions about transsexualism and gender identity have been labeled as “hateful” speech.
“Hate speech” is now broadly “defined” by leftists to include “offensive words, about or directed towards historically victimized groups.” The concept of hate speech has expanded to include commonplace views about racial or sexual subjects. That includes criticizing feminism, affirmative action, homosexuality, or gay marriage, or opinions about how to address sexual harassment or allegations of racism in the criminal justice system.
These broad definitions of hate speech aren’t based on the First Amendment. In the past, the Supreme Court has ruled that there is no “hate speech” exception to the First Amendment, which protects speech that offends minority groups. But foreign countries are banning hate speech on social media, and many legal scholars and civil-rights activists are now calling for America to follow their example and ban hate speech by limiting the First Amendment.
That’s a bad idea, because both normal people, and even experts, run the risk of running afoul of broad bans on “hate speech.” For example, Twitter applied its “rules against hateful conduct” to briefly ban an expert on sexuality for stating in passing that transsexualism is a mental disorder. That was true even though, back then, the “bible of psychiatry,” the DSM-5, said that transsexualism is a disorder, and the expert chaired the group that worked on that section of the DSM-5. Sharing his expertise was deemed hate speech.
As Ben Bowles notes, Ray Blanchard was known for “his scholarly writing on gender confusion.” He also was “chairman of the working group on paraphilia” for the fifth edition of the “Diagnostic and Statistical Manual of Mental Disorders” (DSM-5), in which the classification of transgenderism was changed from a serious disorder to a milder one, “gender dysphoria.” As Bowles observed, “Paraphilia is a condition characterized by abnormal sexual desires, typically involving extreme or dangerous activities.”
