• by Wendy Davis  @wendyndavis, February 15, 2023

A federal judge has blocked a New York law that would have required social-media platforms to accept complaints about “hate speech,” and to disclose how those complaints are handled.

In a ruling issued Tuesday, U.S. District Court Judge Andrew Carter in the Southern District of New York said the statute, which he refers to as the “Hateful Conduct Law,” likely violates the First Amendment.

“The First Amendment protects from state regulation speech that may be deemed 'hateful' and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest,” Carter wrote. “The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.”

The law, which was passed several months after a white supremacist killed 10 Black people at a grocery store in Buffalo, 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.”

The measure requires social platforms to offer users a mechanism to make complaints about “hateful conduct,” and also requires the platforms to publicly post a policy that details how they will respond to complaints.

UCLA Law professor Eugene Volokh, who operates the Volokh Conspiracy blog, and video platform Rumble sued to block the New York measure. Among other arguments, they said the law violated the First Amendment because it attempts to regulate speech based on viewpoint and content.

Carter agreed, writing that the law requires social platforms “to endorse the state’s message about 'hateful conduct.'”

“The Hateful Conduct Law requires social media networks to disseminate a message about the definition of 'hateful conduct' or hate speech -- a fraught and heavily debated topic today,” Carter wrote.

He said that even though the law doesn't require 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.”

“The Hateful Conduct Law places plaintiffs in the incongruous position of stating that they promote an explicit 'pro-free speech' ethos, but also requires them to enact a policy allowing users to complain about 'hateful conduct' as defined by the state,” Carter wrote.

The judge also said the law is vague, and appears to cover constitutionally protected speech.

“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?”

Carter added that the measure “fundamentally implicates” users' speech, by requiring social platforms to give people a mechanism to complain about other people's speech.

He also said that even if the law aimed to reduce “hate-fueled mass shootings” such as the one in Buffalo, the measure wasn't narrowly tailored toward that goal.

“It is unclear what, if any, effect a mechanism that allows users to report hateful conduct on social media networks would have on reducing mass shootings,” he wrote.