NY’s ‘Hateful Conduct’ Social Media Law Blocked As Unconstitutional

Last summer, we wrote about New York's law to require websites to have hateful conduct" policies, noting that it was ridiculous" and likely unconstitutional." The law was passed in the wake of the horrific Buffalo super market shooting, where the state's Governor and Attorney General sought to blame the internet, rather than the government's own failings that contributed to the death toll.

While we noted the law wasn't quite as bad as some other state laws, it was very problematic, in that it was pretty clearly trying to force websites to pull down content even if it was constitutionally protected speech. Some people argued back that since the law didn't really require anything other than having a policy and some transparency, that it would pass muster.

Thankfully, though, the first court to take a look has agreed with me, and granted an injunction barring the law from taking effect over constitutional concerns. The ruling is... really good, and really clear.

With the well-intentioned goal of providing the public with clear policies and mechanismsto facilitate reporting hate speech on social media, the New York State legislature enacted N.Y.Gen. Bus. Law 394-ccc (the Hateful Conduct Law" or the law"). Yet, the First Amendmentprotects from state regulation speech that may be deemed hateful" and generally disfavorsregulation of speech based on its content unless it is narrowly tailored to serve a compellinggovernmental interest. The Hateful Conduct Law both compels social media networks to speakabout the contours of hate speech and chills the constitutionally protected speech of social mediausers, without articulating a compelling governmental interest or ensuring that the law is narrowlytailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction,prohibiting enforcement of the law, is GRANTED.

The ruling then digs into the details, and notes that the requirement for a hateful conduct policy is compelling speech, which is a problem under the 1st Amendment:

Plaintiffs argue that the law regulates the content of their speech by compelling them tospeak on an issue on which they would otherwise remain silent. (Pl.'s Mem., ECF No. 9 at 12;Tr., ECF No. 27 at 47:5-13.) Defendant argues that the law regulates conduct, as opposed tospeech, because there is no requirement for how a social media network must respond to anycomplaints and because the law does not even require the network to specifically respond to acomplaint of hateful content. (Def.'s Opp'n, ECF No. 21 at 9.) Instead, the law merely requiresthat the complaint mechanism allows the network to respond, if that is the social media network'spolicy. (Tr., ECF No. 27 at 11:25-1212:4.)

Defendant likens the Hateful Conduct Law to the regulation upheld in Restaurant Law Ctr.v. City of New York, which required fast-food employers to set up a mechanism for their employeesto donate a portion of their paychecks to a non-profit of that employee's choosing. 360 F. Supp.3d 192 (S.D.N.Y. 2019). The court found that this did not constitute speech"-nor did itconstitute compelled speech"-noting that the ministerial act" of administering payrolldeductions on behalf of their employees did not constitute speech for the employers. Id. at 214.As such, the court applied rational basis review and found that the regulation passed muster. Id.at 221.

However, those facts are not applicable here. The Hateful Conduct Law does not merelyrequire that a social media network provide its users with a mechanism to complain about instancesof hateful conduct". The law also requires that a social media network must make a policy"available on its website which details how the network will respond to a complaint of hatefulcontent. In other words, the law requires that social media networks devise and implement awritten policy-i.e., speech.

Furthermore, the court notes that the law more or less demands a specific kind of hateful conduct" policy.

Similarly, the Hateful Conduct Law requires a social media network to endorse the state'smessage about hateful conduct". To be in compliance with the law's requirements, a social medianetwork must make a concise policy readily available and accessible on their website and application" detailing how the network will respond and address the reports of incidents of hatefulconduct on their platform." N.Y. Gen. Bus. Law 394-ccc(3). Implicit in this language is thateach social media network's definition of hateful conduct" must be at least as inclusive as thedefinition set forth in the law itself. In other words, the social media network's policy must definehateful conduct" as conduct which tends to vilify, humiliate, or incite violence" on the basis ofrace, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identityor gender expression." N.Y. Gen. Bus. Law 394-ccc(1)(a). A social media network that devisesits own definition of hateful conduct" would risk being in violation of the law and thus subject toits enforcement provision.

It's good to see a court recognize that compelled speech is a 1st Amendment problem.

There are other problems as well that will create real chilling effects on speech:

The potential chilling effect to social media users is exacerbated by the indefiniteness ofsome of the Hateful Conduct Law's key terms. It is not clear what the terms like vilify" andhumiliate" mean for the purposes of the law. While it is true that there are readily accessibledictionary definitions of those words, the law does not define what type of conduct" or speech"could be encapsulated by them. For example, could a post using the hashtag BlackLivesMatter"or BlueLivesMatter" be considered hateful conduct" under the law? Likewise, could socialmedia posts expressing anti-American views be considered conduct that humiliates or vilifies agroup based on national origin? It is not clear from the face of the text, and thus the law does not put social media users on notice of what kinds of speech or content is now the target of governmentregulation.

Last year, we had Prof. Eric Goldman on our podcast to discuss how many lawmakers (and some courts...) were insisting that the Zauderer test" meant that it was okay to mandate transparency on social media policies. Both the 11th Circuit and the 5th Circuits ruling in the Florida and Texas social media bills actually found the transparency requirements to be okay based on Zauderer. However, Goldman has argued (compellingly!) that both courts are simply misreading the Zauderer standard, which was limited to transparency around advertising, and only required transparency of purely factual information" that was uncontroversial" and for the purpose of preventing consumer deception.

All of that suggests that the Zauderer test should not and could not apply to laws mandating social media content moderation policy transparency.

Thankfully, it appears that this court in NY agrees, rejecting the attempts by the state to argue that because this is commercial speech," the law is fine. Not so, says the court:

The policy disclosure at issue here does not constitute commercial speech and conveysmore than a purely factual and uncontroversial" message. The law's requirement that Plaintiffspublish their policies explaining how they intend to respond to hateful content on their websitesdoes not simply propose a commercial transaction". Nor is the policy requirement related solelyto the economic interests of the speaker and its audience." Rather, the policy requirement compelsa social media network to speak about the range of protected speech it will allow its users to engage(or not engage) in. Plaintiffs operate websites that are directly engaged in the proliferation of speech-Volokh operates a legal blog, whereas Rumble and Locals operate platforms where userspost video content and comment on other users' videos.

Goldman wrote a detailed post on this ruling as well and notes the importance of how the court handles Zauderer:

The court's categorical rejection of Zauderer highlights how Zauderer evangelists are using the precedent to normalize/justify censorship. This is why the Supreme Court needs to grant cert in the Florida and Texas cases. Ideally the Supreme Court will reiterate that Zauderer is a niche exception of limited applicability that does not include mandatory editorial transparency. Once Zauderer is off the table and legislatures are facing strict scrutiny for their mandated disclosures, I expect they will redirect their censorial impulses elsewhere.

Anyway, it's good to see a clear rejection of this law. Hopefully we see more of that (and that this ruling stands on the inevitable appeal).