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United States:

Judge Carter Enjoins New York's New Online Hate Speech Law On First Amendment Grounds

21 February 2023

by

Charles Michael (New York)

Steptoe & Johnson

To print this article, all you need is to be registered or login on Mondaq.com.

In an opinion Tuesday, Judge Carter issued an
injunction against New York's newly-enacted online hate speech
law (see our prior coverage here).

The law would require social media platforms to develop policies
for addressing, and responding to user complaints about,
"hateful conduct." Judge Carter found that, in doing so,
the law impermissibly compelled the challengers — Rumble and
other "pro-free speech" online platforms — to
engage in speech with which they disagreed:

[T]he 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. Even though the Hateful Conduct Law ostensibly does
not dictate what a social media website's response to a
complaint must be and does not even require that the networks
respond to any complaints or take down offensive material, the
dissemination of a policy about "hateful conduct" forces
Plaintiffs to publish a message with which they disagree. Thus, 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.

Judge Carter also found that the law's vague definitions
could have a "profound chilling effect" on speech:

[The new law] could have a profound chilling effect on social
media users and their protected freedom of expression. Even though
the law does not require social media networks to remove
"hateful conduct" from their websites and does not impose
liability on users for engaging in "hateful conduct", the
state's targeting and singling out of this type of speech for
special measures certainly could make social media users wary about
the types of speech they feel free to engage in without facing
consequences from the state. This potential wariness is bolstered
by the actual title of the law— "Social media networks;
hateful conduct prohibited" —which strongly suggests
that the law is really aimed at reducing, or perhaps even
penalizing people who engage in, hate speech online.

. . . The potential chilling effect to social media users is
exacerbated by the indefiniteness of some of the Hateful Conduct
Law's key terms. It is not clear what the terms like
"vilify" and "humiliate" mean for the purposes
of the law. While it is true that there are readily accessible
dictionary definitions of those words, the law does not define what
type of "conduct" or "speech" could be
encapsulated by them. 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? It is not clear from the face of the text, and
thus the law does not put social media users on notice of what
kinds of speech or content is now the target of government
regulation.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

AUTHOR(S)

Charles Michael

Steptoe & Johnson

ARTICLE TAGS

United States
Litigation, Mediation & Arbitration
Trials & Appeals & Compensation
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