N.Y. Hateful Conduct Law 'Chills' Online Satire, Says Babylon Bee Amicus Brief

News satire site the Babylon Bee is a frequent target of online censorship and attacks by “humorless scolds, Big Tech, and prestigious media outlets,” and New York’s hateful conduct law (Section 394-ccc) increases that censorship, said its 2nd U.S. Circuit Court of Appeals amicus brief Tuesday (docket 23-356) in support of the district court’s order blocking the state from enforcing the law (see 2309270005). “As lovers of free speech and humor,” the Bee “has a substantial interest in the outcome here,” said the brief, submitted with the Alliance Defending Freedom.

The world’s absurdity “made our job more difficult,” said the brief. “We have to think up fictional stories that are more outlandish than what happens in real life,” it said. Effective satire caricatures reality to make a point, “but that becomes challenging when reality itself has become a caricature,” it said. “Even worse, it becomes increasingly difficult for our readers to discern what’s real and what’s not,” it said.

People on social media often take offense at satire “or misunderstand its intent,” said the brief. Section 394-ccc “now encourages offended social-media users to report their exasperation to social-media networks who then must adopt a policy for removing so-called offensive speech,” it said. The law’s “reporting mechanism” silences expression, while its “disclosure requirement” compels speech, it said.

The reporting mechanism “chills speech by promoting censorship of expression by social-media users,” said the brief. Speakers with “less fortitude” will refrain from posting about controversial topics “when they know they will be reported for it,” it said. Social media networks can “turn around and remove its content based on reports the New York law facilitates,” it said.

The law’s disclosure requirement then forces social media networks to adopt and publish New York’s hateful conduct definition, said the brief: “There’s a cruel irony -- and probably a good joke somewhere -- about forcing a renowned First Amendment law professor and the other pro-free speech Plaintiffs here to publish, promote, and adopt an anti-free speech policy.”

New York’s Section 394-ccc “is facially overbroad because it regulates almost nothing but constitutionally protected speech,” said the brief. The real concern is that the law’s “overbreadth” makes online satire “impossible,” it said, and that’s “reason enough” to strike the law for good.

Good satire “doesn’t mock to put people down and make them feel bad,” said the brief: “It’s a tool to expose foolish ideas.” Such mockery, some might argue, “is a moral imperative because bad ideas taken seriously have catastrophic consequences,” it said.

By criticizing through humor and entertainment, satire “possesses a unique ability to persuade by cutting to the heart of the matter,” said the brief. For that reason, satire “has been an important part of America’s democratic tradition,” it said.

But because satire depends on criticism, some perceive it as speech that vilifies, humiliates or incites violence, in violation of Section 394-ccc, said the brief. It cited the example of a satirical article it ran “about sensitive Twitter employees needing to undergo therapy” due to the imminent Elon Musk takeover. “Without realizing the irony,” it said, Twitter “flagged that joke for containing ‘sensitive content.’”