• by Wendy Davis , 2 hours ago

New York's highest court has agreed to weigh in on the constitutionality of a state law requiring social platforms to accept complaints about offensive speech and disclose how they're handled.

The statute, which was passed after a white supremacist killed 10 Black people at a grocery store in Buffalo, specifically requires social platforms to offer users a mechanism to make complaints about “hateful conduct" -- defined in the law 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 also compels social platforms to publicly post a policy explaining how they will respond to complaints about "hateful conduct."

The video platform Rumble and UCLA Law professor Eugene Volokh, who operates the Volokh Conspiracy blog, sued to strike down the law. They argued the measure violates with their constitutional right to decide what to publish on their sites.

Last 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 the law's definition of "hateful conduct" is vague and appears to cover constitutionally protected speech. He also ruled that even though the statute doesn't force companies to remove offensive material, the requirement to post a policy about hate speech likely violates the First Amendment.

New York Attorney General Letitia James then appealed to the 2nd Circuit, arguing to that court that the law only requires companies to make a reporting tool available to users, but doesn't require platforms to respond to user reports.

Last month, a divided panel of the 2nd Circuit said in a 2-1 ruling that the text of the law could be read in different ways, and its constitutionality hinges on how New York judges would interpret it.

If the law "merely mandates that social media networks disclose their content moderation policies -- whatever they may be -- without requiring those policies to specifically reference or otherwise encompass 'hateful conduct,'" the law would be comparable to other statutes that have been held constitutional, Circuit Judges Beth Robinson and Alison Nathan wrote.

But, they added, if the law is interpreted to require social platforms to reference or adopt the government's definition of "hateful conduct," the statute would be unconstitutional.

They asked New York's Court of Appeals judges to say which interpretation of the law they believe is correct.

On Tuesday, the state court informed the 2nd Circuit that it would do so.

Circuit Judge Dennis Jacobs dissented from the decision to ask New York's highest court how it would interpret the law, writing that he believes it is flatly unconstitutional.

"The Hateful Conduct Law is unconstitutional under any plausible interpretation. I would not ask the New York Court of Appeals which unconstitutional interpretation is correct," he wrote.