NetChoice, ACLU, EFF Urge 2nd Circuit to Keep N.Y. Hateful Conduct Law Blocked

New York, in enacting its hateful conduct law in the aftermath of the May 2022 mass shooting of Black shoppers at a Buffalo supermarket (see 2309260001), “joins a growing number of states trying to evade the First Amendment’s constraints to influence what lawful speech appears online,” said NetChoice and the Chamber of Progress in a amicus brief (docket 23-356) Monday. The brief filed at the 2nd Circuit U.S. Court of Appeals is in support of affirming the district court’s injunction blocking New York Attorney General Letitia James (D) from enforcing the measure (Section 394-ccc).

To evade “constitutional scrutiny,” Section 394-ccc purports to regulate hateful conduct, but its definition of conduct includes only speech, said the NetChoice/Chamber brief. That’s because the only way to use a social media network “is to create, share, consume, or exercise editorial discretion over speech,” it said. The First Amendment’s protection for speech doesn’t vanish when the government “unilaterally renames it ‘conduct,’” it said.

Large online services that host user-generated content, like those operated by NetChoice and Chamber of Progress members and partners, “face a constant battle against malicious actors, including spammers, scammers, and users peddling hateful content,” said the brief. To combat that content, and maintain a viable communications forum, these companies invest in “state-of-the-art content moderation systems,” it said.

Though New York’s Section 394-ccc is "well-intentioned," its reporting and response requirements won’t improve these systems’ ability “to identify and remove offensive content,” said the NetChoice-Chamber brief. They may at times even “undermine existing efforts to combat hateful content,” it said.

“Persistent political efforts” to regulate online speech illustrate the “confusion” about the First Amendment’s application to social media services, said the NetChoice-Chamber brief. Though these efforts differ in form, “their shared goal is to grant the state influence over private editorial standards,” it said. But expression is protected “no matter what medium it appears on,” and a 2nd Circuit finding for New York “would lead to absurd consequences,” it said.

One state might require reporting, responses and disclosures about lawful content perceived by some users to “vilify” or “humiliate,” said the NetChoice-Chamber brief. Other states might enforce similar statutes against “hateful” criticism of the police or LGBTQ+ advocacy, “leading to a 50-state patchwork of editorial requirements based on which messages local politicians disfavor,” it said. Without the 2nd Circuit’s confirmation that the First Amendment prohibits Section 394-ccc, political efforts to interfere with online expression “will continue to proliferate” in the 2nd Circuit, it said.

Section 394-ccc “is an unconstitutional intrusion into the editorial freedom that all publishers, including social media platforms and other websites, enjoy,” said Tuesday’s amicus brief from the ACLU and Electronic Frontier Foundation. The law’s clear purpose “is to change the editorial policies and editorial methods of these publishers to accord with the state’s definition of hateful speech and what the state perceives to be its attendant harms,” said the ACLU-EFF brief. Though the law purports to empower some internet users, “it also aims to silence others and deny still others access to information,” it said.

Content moderation by online “intermediaries” is “an already fraught process,” said the ACLU-EFF brief. Government interjection of itself into that process in any form “raises serious First Amendment, and broader human rights, concerns,” it said. Laws such as Section 394-ccc “that seek to coopt a portion of the process must survive First Amendment scrutiny,” it said. “Section 394-ccc does not,” it said. The 2nd Circuit “should affirm the district court’s order enjoining the law’s enforcement,” it said.

New York’s Section 394-ccc, as the district court “correctly held,” facially violates the First Amendment, said the Cato Institute amicus brief Tuesday. The law “defies the plain meaning of the First Amendment,” and “voluminous” U.S. Supreme Court precedent “uniformly instructing” that so-called hate speech “is entitled to full First Amendment protection,” it said.

The U.S. District Court for Southern New York “correctly recognized” that Section 394-ccc “chills the speech of social media users and facially violates the First Amendment,” said the Cato brief. The law even encourages “self-censorship” on the internet “by stigmatizing disfavored ideas through the use of vague and ultimately meaningless regulations on speech that ‘vilifies’ or ‘humiliates,’” it said.

Section 394-ccc mandates that social media platforms disclose how they will respond to and address reports of incidents of hateful conduct, said Tuesday’s amicus brief from the Reporters Committee for Freedom of the Press. Section 394-ccc’s “plain intent” is to discourage platforms from distributing speech that New York considers hateful, the brief said. “However admirable” New York’s goals were in enacting Section 394-ccc, the 1974 SCOTUS decision in Miami Herald Publishing Co. v. Tornillo “bars the state from substituting its own editorial judgment for that of a private party,” it said.