• by Wendy Davis  @wendyndavis, September 22, 2023

A New York law requiring social-media platforms to accept complaints about offensive speech and disclose how they're handled violates the First Amendment, the law's critics argued this week to the 2nd Circuit Court of Appeals.

The law “presents a First Amendment 'triple whammy,'” video platform Rumble and UCLA Law professor Eugene Volokh writes, who operates the Volokh Conspiracy blog.

“It unconstitutionally regulates protected speech, compels covered websites to endorse and promote the state’s unconstitutional perspective on 'hate speech' ... and pressures them to target this disfavored -- but protected -- speech because of its viewpoint, under pain of investigation and fines,” the blog adds.

Earlier this year, U.S. District Court Judge Andrew Carter in the Southern District of New York blocked the statute on the grounds that it likely violates the First Amendment.

He ruled that although 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.”

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

The measure 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.”

Carter ruled that those standards are vague and appear 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?”

New York Attorney General Letitia James has asked the 2nd Circuit Court of Appeals to reinstate the law, arguing it regulates conduct, not speech.

“The report-mechanism requirement provides that networks must make a user tool available on their websites -- it does not require users to report anything and does not require networks to respond to user reports in any way,” James' office wrote in a brief filed in June.

Volokh and Rumble counter in their new papers that the law's mandates interfere with their First Amendment right to decide what to publish on their sites.

They add that the law's definition of “hateful” could sweep in a broad array of content, including “an editorial in The Washington Post opposing bans on burning the Quran,” a “historical video of Malcolm X discussing white people’s guilt,” or a “John Oliver comedy segment poking fun at the British for having a monarchy.”

The 2nd Circuit hasn't yet said when it will hear arguments in the matter.