Court Delivers Big Win for Free Speech Advocates

A New York court has blocked a state law designed to censor “hateful conduct” on social media.

Following the Buffalo supermarket shooting in 2022, New York passed a bill requiring social media companies that operate within the state to “maintain mechanisms for reporting hateful conduct” on their platforms. Despite the “well-intentioned goal,” U.S. District Court for the Southern District of New York Judge Andrew L. Carter Jr. ruled that the First Amendment “protects from state regulation speech that may be deemed ‘hateful.’”

“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,” Carter wrote in the decision. “In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.”

In December, the Foundation for Individual Rights and Expression (FIRE) filed the lawsuit against New York Attorney General Letitia James challenging the law on behalf of First Amendment scholar and co-founder of The Volokh Conspiracy blog Eugene Volokh, as well as the platforms Rumble and Locals.

The bill defined “hateful conduct” as “the use of a social media network 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.”

We interrupt your Valentine's Day dinner to deliver some lawsuit news we really ♥️: A New York court just sided with FIRE and halted enforcement of a New York law that unconstitutionally restricts online speech. https://t.co/QHwMriMAgH

— FIRE (@TheFIREorg) February 15, 2023

🚨BREAKING NEWS: Rumble and it’s team just won a huge victory for free speech tonight—a judge blocked New York’s unconstitutional social media law. Great work by @TheFireorg, @VolokhC, and Rumble’s legal team!

— Rumble – 🏴‍☠️ $RUM (@rumblevideo) February 15, 2023

“This decision is a big win for the First Amendment,” FIRE Attorney Daniel Ortner said. “Judge Carter correctly concluded that the law would have required websites like the Volokh Conspiracy, Rumble, and Locals to adopt censorship policies for anything the State of New York considers ‘hateful,’ requiring them to endorse the state’s view that such speech is worth singling out for removal.”

“But as Judge Carter noted, the law is written so poorly that it could apply to a post endorsing Black Lives Matter or All Lives Matter if a user found either message offensive,” he continued. “And such a vague, overboard, and coercive law offends the First Amendment. This decision ensures that New York cannot turn bloggers into big brother or social media platforms into its speech police.”

UCLA Law Professor and plaintiff on the case Eugene Volokh told the Daily Caller News Foundation that the decision “makes clear that the government can’t single out particular ideological viewpoints, by requiring platforms to have policies for dealing with those viewpoints.”

“A state couldn’t, for instance, require platforms to have policies for dealing with unpatriotic speech, or anti-police speech; likewise, it can’t require them to have policies explaining how they deal with ‘hateful’ speech,” Volokh said. “The government should stick to punishing crime, and, if it wants to, speaking out against views it disapproves of – but it can’t pass laws targeting those views for regulation.”