N.Y. Hateful Conduct Law ‘Contradicts’ First Amendment ‘Traditions’: Amicus Brief

In a nation “where the first cries for liberty and independence came from colonial pamphlets and newspapers,” New York now restricts the printed word “in the name of policing conduct,” said the New Civil Liberties Alliance in an amicus brief Tuesday (docket 23-0356) that urges the 2nd Circuit U.S. Court of Appeals to affirm the district court’s preliminary injunction to block New York Attorney General Letitia James from enforcing Section 394-ccc, the state’s hateful conduct law.

The notion that because a website is in the business of publishing speech that somehow reduces the courts’ First Amendment scrutiny of restrictions on its speech “contradicts our First Amendment traditions,” said the alliance’s brief. What New York proposes for social media websites alone would have “far-reaching consequences,” both beyond the state’s borders and for other modes of speech, it said.

Section 394-ccc violates the First Amendment by compelling social media networks to endorse the state’s beliefs, said the alliance’s brief. They must publish a hate speech policy in line with the state’s mandate. New York’s assertion is “untenable” that Section 394-ccc is no different than the “factual and uncontroversial information” authorized in the U.S. Supreme Court’s 1985 Zauderer v. Office of Disciplinary Counsel decision. In Zauderer, SCOTUS said a state may situationally compel commercial speech without violating an advertiser's First Amendment rights.

What constitutes hate speech “is a topic of contentious debate and can hardly be described as uncontroversial,” said the alliance’s brief. New York also can’t proclaim the right to “trample on free speech” by falsely claiming the speech is commercial in nature, it said. The speech of the three online platforms that challenged Section 394-ccc on constitutional grounds “is protected under heightened First Amendment scrutiny,” it said. The 2nd Circuit should affirm the U.S. District Court for Southern New York's decision imposing the injunction to block Section 394-ccc’s enforcement, it said.

Hate speech is easy to oppose, but it’s “nearly impossible to define,” said the Thomas More Society’s amicus brief Tuesday, also in support of the injunction blocking Section 394-ccc’s enforcement. Definitional problems aside, legislation against hate speech “offers governmental censors a tool for silencing views disapproved of by those holding power,” it said.

Laws like Section 394-ccc “reflect a belief that speech should be limited instead of robust,” said the society’s brief. “Yet, our constitutional tradition has long recognized that so-called ‘controversial’ speech is not only protected, but that it also often makes the most valuable contributions to political and social discourse,” it said.

Section 394-ccc effectively operates as a “heckler’s veto” that permits “the potentially negative reactions of others to justify censorship of a peaceful speaker,” said the society’s brief. This censorship “deprives the speaker of her rights and further denies intended audience members their ability to hear and consider the speaker’s point of view,” it said.

The experiences of the U.K. and Canada, which have adopted hate speech laws, show individuals targeted for enforcement won’t “infrequently be those who simply adhere to and express traditional moral views that are unpopular with those in power,” it said. Even without the power of a law like Section 394-ccc, censorship of this speech is already occurring in the U.S. “under the flimsiest of pretexts,” it said.