NEW YORK, N.Y., Feb. 15, 2023 — On Tuesday, a federal court halted enforcement of a misguided New York law that forces websites and apps to address online speech that someone, somewhere, finds humiliating or vilifying. The court ruling means that New York cannot legally force blogs and other internet platforms to adopt its preferred definition of hate speech or be drafted into New York’s “speech police.”
Represented by the Foundation for Individual Rights and Expression, constitutional law professor Eugene Volokh and online platforms Rumble and Locals sued New York Attorney General Letitia James on Dec. 1 to stop the State from trying to control speech on a large swath of the internet. Volokh is a First Amendment expert with a popular legal blog, “The Volokh Conspiracy,” and Rumble and Locals are, respectively, a video platform similar to YouTube and a community-building platform that allows creators to connect directly with their audience. All are known for their commitment to free speech.
New York’s online hate speech law was passed after last May’s tragic mass shooting by a white supremacist at a supermarket in Buffalo. FIRE argued that the law compelled all manner of websites — from blogs to social media platforms — to parrot the state’s message. It also chilled online discourse, stifling the constitutionally protected speech of platforms and users alike.
“New York tried to single out particular ideological viewpoints by requiring me and other platform operators to have policies for dealing with those viewpoints,” said plaintiff Eugene Volokh. “That’s just as unconstitutional as the government targeting ‘unpatriotic’ speech or anti-police speech or whatever else. I’m grateful that this decision makes clear that such viewpoint-based attempts at government regulation are unconstitutional.”
In issuing the preliminary injunction, Judge Andrew Carter of the Southern District of New York explained 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.” Regulation of hate speech is “particularly onerous for Plaintiffs, whose websites ‘have dedicated pro-free speech purpose[s].’” Because the law “is clearly aimed at regulating speech,” Judge Carter ruled, it “chills the constitutionally protected speech of social media users” in violation of the First Amendment.
Judge Carter also recognized that the law’s vague terms, such as “vilify” and “humiliate,” chill protected speech: “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?” Such a chilling effect is unacceptable “[i]n the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant.”
“For decades, courts have been very clear: States cannot burden the free exchange of ideas, regardless of the ideas’ perceived morality or merit,” said FIRE attorney Jay Diaz. “What happened in Buffalo broke the nation’s heart, and we are thankful that the killer is being brought to justice. But, as the court recognized, violating expressive rights online won’t make us safer.”
The New York law ensnared bloggers, commenters, websites, and apps around the country due to its broad definition of “social media networks” as for-profit “service providers” that “enable users to share any content.” This vague wording meant the law could impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers.