• by Wendy Davis , Staff Writer @wendyndavis, September 27, 2023

It's not every day the right-wing Thomas More Society, civil liberties organization Electronic Frontier Foundation and tech industry groups like NetChoice agree, but they're united in the belief that New York's new online hate speech law is unconstitutional.

That law requires social platforms to give users a tool to complain about hate speech, and requires companies to disclose how they will respond to such complaints.

“While 'hate speech' is easy to oppose, it is nearly impossible to define,” the Thomas More Society writes in a friend-of-the-court brief filed this week with the 2nd Circuit Court of Appeals.

“Legislation against 'hate speech' offers governmental censors a tool for silencing views disapproved of by those holding power,” the group adds.

The Electronic Frontier Foundation and American Civil Liberties Union say in a separate friend-of-the-court brief that the new law is part of a larger effort “to coerce interactive websites to replace their editorial policies regarding hateful speech, with that of the state.”

New York lawmakers passed the measure several months after a white supremacist killed 10 Black people at a grocery store in Buffalo.

While the statute uses the phrase “hateful conduct,” the bill is clearly aimed at online speech -- not offline behavior. In fact, the bill defines hateful conduct as using social media 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.”

Video platform Rumble and UCLA Law professor Eugene Volokh, who operates the Volokh Conspiracy blog, challenged the law in court, arguing it's unconstitutional.

Earlier this year, U.S. District Court Judge Andrew Carter in the Southern District of New York blocked enforcement. He ruled that even though the law doesn't force companies to remove offensive material, the requirement to post a policy about hate speech in itself forces Rumble and others “to publish a message with which they disagree.”

He also said the law's definition of “hateful conduct” is vague and appears to cover constitutionally protected speech. The First Amendment prohibits the government from censoring a broad range of offensive speech, including speech that's racist, sexist or otherwise objectionable.

“It is not clear what the terms like 'vilify' and 'humiliate' mean for the purposes of the law,” he wrote. “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?"

New York Attorney General Letitia James recently asked the 2nd Circuit Court of Appeals to reinstate the measure. She argues it only requires companies to make a tool for complaints available, and doesn't require the companies to act on those complaints.

But opponents say the government has no business mandating disclosure of content moderation policies, or requiring social platforms to accept users' criticisms of other people's posts.

“Like a traditional newspaper’s editorial processes, defining, publishing, and enforcing social media 'house rules' on a wide range of subject matter is, itself, an act of expression,” the tech industry funded groups NetChoice and Chamber of Progress write.

“By requiring online services to create a policy and mechanism for users to report certain lawful content, the online hate speech law compels them to express the state’s own message (here, disdain or disapproval) for that content. But speech compulsions are as constitutionally suspect as speech restrictions,” the organizations add.

Others weighing in against the law include the advocacy group Reporters Committee for Freedom of the Press and think tank Cato Institute.

“New York’s efforts to silence 'offensive' ideas with which it disagrees facially violate the First Amendment,” Cato writes.

The Reporters Committee separately argues that even if the law doesn't directly censor speech, it still represents an indirect effort to influence content moderation.

“Even if the statute stops short of expressly penalizing news organizations and other websites for hosting 'hateful' content, the law’s 'inevitable effect' is to encourage editors to remove material that might meet the state’s definition,” that group writes.