TechFreedom Brief Urges 2nd Circuit to ‘Strike Down’ N.Y. Hateful Conduct Law

New York’s hateful conduct law (Section 394-ccc) “intrudes on websites’ First Amendment rights in a pernicious way,” by using “vague terms” to define hate speech, and forces covered websites to publish a policy explaining how they will respond to and address complaints about that speech, said Santa Clara University law professor Eric Goldman and TechFreedom in an amicus brief Monday (docket 23-356) in the 2nd U.S. Court of Appeals. They support the affirmation of the district court’s grant of a preliminary injunction blocking New York Attorney General Letitia James (D) from enforcing the law.

New York enacted Section 394-ccc after the May 2022 mass shooting of Black shoppers at a Buffalo supermarket in which a white supremacist livestreamed the murders on Twitch and other social media sites. Three online platforms challenged the law’s constitutionality, and U.S. District Judge Andrew Carter for Southern New York in Manhattan, in a Feb. 14 opinion and order, blocked James from enforcing the measure.

Carter said the law “both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users.” Carter said the law fails to articulate “a compelling governmental interest” and lacks safeguards for ensuring the law “is narrowly tailored to that goal.” Carter granted the injunction “in the face of our national commitment to the free expression of speech,” even where that speech “is offensive or repugnant.”

The First Amendment bars the government from interfering with an uninhibited marketplace of ideas, said the Goldman-TechFreedom amicus brief. Governments in the U.S., from time to time, have sought to test the First Amendment’s “foundational principles,” it said: “This is one of those times.”

New York’s Section 394-ccc “flouts the well-established First Amendment protection for publishers’ editorial judgment,” said the brief. The law is a government effort “to distort private entities’ editorial decisions by forcibly exposing, scrutinizing, pressuring, and punishing decisions the government doesn’t like,” it said. Section 394-ccc, “on its face,” is “a compelled-speech provision,” and that’s bad enough, it said. But "even worse," by targeting and changing editorial decisions, the statute "also functions as a content-based speech regulation,” it said.

The “censorship-through-disclosure approach” embedded in Section 394-ccc “has no historical antecedent,” said the brief. Before the internet, state legislatures “apparently never attempted to impose mandatory disclosure requirements,” like those of Section 394-ccc, on publishers of newspapers, magazines, books, music and other printed materials, it said. Section 394-ccc’s “novelty” as a policy approach “highlights the exceptional and extreme nature of the legislature’s intervention into editorial processes,” it said.

To confirm that Section 394-ccc is unprecedented, Goldman and TechFreedom “exhaustively” canvassed 59 media and internet experts but were unable to uncover a pre-internet law like Section 394-ccc, said the brief. In contrast, “there have been longstanding disclosure requirements for radio and television broadcasters,” but the survival of those laws “says nothing about the constitutionality of Section 394-ccc,” it said. Courts have allowed the government some discretion “to intrude into broadcasters’ editorial judgment,” it said. But the internet can’t be subjected “to analogous intrusions,” it said.

The 2019 4th Circuit decision in Washington Post v . McManus reinforced that legislatures can’t impose editorial disclosure obligations, “broadcast-like or not,” on internet publishers, said the brief. In that case, Maryland tried to require certain websites to publish, and keep for state inspection, information about the political advertisements they run, it said. The decision said the law “violated the First Amendment several times over,” it said.

The Maryland law, like Section 394-ccc, “singled out specific categories of content for disclosure,” said the brief. Like Section 394-ccc, “it compelled websites to publish content dictated by the government,” it said. Also like Section 394-ccc, the Maryland statute wasn’t saved “by invoking broadcast disclosure precedent,” it said. The 2nd Circuit “should follow McManus and strike down Section 394-ccc,” it said.