NY social media hate speech law passes test at top state court

MANHATTAN (CN) — Requiring social media networks to tamp down on hate speech doesn’t violate free speech rights, New York’s high court said in a Tuesday split ruling.

The New York Court of Appeals answered questions the Second Circuit asked as part of a lawsuit challenging a state business law requiring social media companies to implement “mechanisms for reporting hateful content” on their platforms.

Lead plaintiff Eugene Volokh is a law professor who writes a blog, “The Volokh Conspiracy,” on which he says he “generally avoids regulating or removing visitor comments from [the] site based on viewpoint.” The social media law, he argues, compels him to speak out against hateful conduct.

After a federal judge stayed the law before it took effect, the Second Circuit on appeal asked the top state court to clarify whether a network can comply with the law without explicitly referencing its definition of hateful conduct — the state Court of Appeals said yes — and whether the statute requires a network to respond to a user report of hateful conduct. The state court said it does not.

Associate Judge of the Court of Appeals Anthony Cannataro wrote the 17-page opinion for the majority.

“Inasmuch as the [hateful conduct law] does not require that the tool be provided ‘solely’ or ’exclusively’ for users to report incidents of hateful conduct, the statute is not offended where a social media network’s reporting tool can be used, without definition or limitation, to report anything a user wishes to report,” he wrote.

According to the majority, the purpose of the hateful conduct law was not to moderate networks’ decisions but to empower social media users by “equipping them with the mechanisms and information they need to bring hateful conduct to networks’ attention, and to identify those platforms whose policies condone such content.”

Associate Judge Michael Garcia dissented in part, taking issue with the finding that a network can comply with the law without using or referring to the state’s definition of hateful conduct.

“These answers read not as statutory analysis but as a creative defense for networks accused of failing to comply with the law,” Garcia wrote. “Nevertheless, despite its best efforts, the majority cannot excise the definition from the plain text. Not only will the statutory terms continue to affect networks’ compliance by forcing them to either adopt that definition or accept all reports of objectionable conduct, but the uncertainty created by the majority’s distortion of the statute increases the risk of arbitrary and abusive enforcement.”

Chief Judge Rowan Wilson concurred with the majority, along with two other associate judges. Two associate judges concurred with Garcia’s dissenting opinion.

The law, passed in 2022 with bipartisan support, requires social media networks to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” The mechanism must be clearly accessible on the company’s website and allow the network to respond to the user reporting the conduct. Networks must also have a “clear and concise policy” on their website that includes how it addresses hateful conduct reports.

Companies in violation face civil penalties up to $1,000 per day.

According to the law, hateful conduct is “the use of a social media network to vilify, humiliate or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.”

Volokh says the state law is contrary to his website’s “ethos, purpose and mission.”

Joining him on the plaintiff side are the video platform Rumble and its creator-subscription platform Locals.

Attorney Bob Corn-Revere represents Volokh. He expressed disappointment in the court’s ruling Tuesday. “But it is important to understand that the New York court did not settle the question of whether the state Hateful Conduct Law is constitutional — it only answered the questions asked regarding how the law should be interpreted,” he said in a statement to Courthouse News.

“The United States Court of Appeals for the Second Circuit will now be called upon to decide whether the law can survive First Amendment scrutiny,” said Corn-Revere, chief counsel at the Washington-based Foundation for Individual Rights and Expression.

Rumble did not immediately return a request for comment.

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