Volokh v. James: Big Brother in the Big Apple: New York Law Turns Bloggers into Speech Police

Update: Victory! On February 14, 2023, the court halted enforcement of the law, ruling that it “chills the constitutionally protected speech of social media users” in violation of the First Amendment. Judge Carter explains that the law unconstitutionally requires social media networks to disseminate the state’s message about the definition of hate speech, “a fraught and heavily debated topic.” The opinion continues, recognizing that the law’s vague terms, such as “vilify” and “humiliate,” chill protected speech, which is unacceptable “[i]n the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant.” Read more.

New York has enacted a new law with the goal of regulating disfavored—but constitutionally protected—online speech. The law, titled “Social media networks; hateful conduct prohibited,” ostensibly targets “hateful conduct,” but in reality requires online platforms to “respond [to],” “address” and “handle” protected speech that someone, somewhere finds “humiliating” or “vilifying” toward a group based on race, color, religion, or other protected categories.

State lawmakers passed the law, which took effect Dec. 3, in the wake of the tragic mass shooting by a white supremacist this past May in Buffalo, New York. It targets protected online speech that lawmakers consider “hateful,” and is so overbroad it reaches a vast swath of the internet. The law seems to be just the first step in further regulation of online speech—which, if adopted, would also violate the First Amendment.

But FIRE is fighting back. On Dec. 1, we sued New York’s Attorney General in federal court on behalf of Eugene Volokh, a First Amendment scholar and co-founder of The Volokh Conspiracy blog, and online platforms Rumble and Locals, seeking to stop enforcement of New York’s unconstitutional law. 

The law compels “social media networks” (broadly defined to include any for-profit website with a comment section and visitors in New York) to parrot the state’s message in three ways. First, they must develop and publish a policy describing how they will respond to visitor complaints about State-defined “hate speech.” Second, networks must create a “clear and easily accessible mechanism” for users to report perceived hate speech. And third, they must “provide a direct response” to those reports, “informing them of how the matter is being handled.” If an online service refuses any of these requirements, the law threatens investigations by the State, subpoenas, and daily fines of $1,000 per violation. 

The law is also unconstitutionally vague. It fails to define terms like “vilify,” “humiliate,” “incite,” and “violence”—providing platforms with little guidance on how to properly comply. Depending on who’s looking, almost anything on the internet can be perceived by someone, somewhere, as vilifying, humiliating, or violent. And it’s all too common for offensive, but protected, speech to be equated with violence.

Speech may be hateful, insulting, or offensive, but that doesn’t mean the government can regulate it. The United States has consistently chosen “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” What happened in Buffalo broke the nation’s heart, and New York’s impulse to take action is understandable. But violating expressive rights online won’t make us safer.

Our request for a preliminary injunction to prevent enforcement of New York’s law is pending and an expedited briefing schedule has been set, with a court conference scheduled for December 19, 2022.