[FIRE] LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

well, it looks like until FIRE wins this lawsuit, Clutch may have to shut ClutchFans down

https://www.thefire.org/news/lawsuit-new-york-cant-target-protected-online-speech-calling-it-hateful-conduct

LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’
by FIRE
December 1, 2022

• First Amendment scholar joins online platforms Rumble and Locals to challenge New York law
• Law goes into effect on Saturday

NEW YORK, N.Y., Dec. 1, 2022 — Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment.

“New York politicians are slapping a speech-police badge on my chest because I run a blog,” said plaintiff Eugene Volokh, who co-founded The Volokh Conspiracy legal blog in 2002. “I started the blog to share interesting and important legal stories, not to police readers’ speech at the government’s behest.”

The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.

New York’s law doesn’t define “vilify,” “humiliate,” or “incite.” Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law’s scope entirely subjective. (The First Amendment does not protect inciting imminent violence, but New York’s law offers no indication, as the First Amendment requires, that it applies only to speech directed to and likely to produce imminent lawless action.)

What expression could the new law reach? Plenty of speech fully protected by the First Amendment, including but not at all limited to:

• An atheist’s post “vilifying” people of faith by criticizing religion.
• A posted video of John Oliver “humiliating” the British people by criticizing the monarchy.
• A comedian’s blog entry “vilifying” men by mocking gender stereotypes.
• A post about Kathy Griffin “humiliating” Christians by shouting “Suck it, Jesus, this award is my God now!” at an awards show.
• Your comment on almost any website that could be considered by someone, somewhere, at some point in time, as “humiliating” or “vilifying” a group based on protected class status like religion, gender, or race.

“The state of New York can’t turn bloggers into Big Brother, but it’s trying to do just that,” said FIRE attorney Daniel Ortner. “The government can’t burden online expression protected by the Constitution, whether it’s doing it in the name of combating hate or any other sentiment. Imagine a similar law requiring sites to publish a reporting policy for speech the state considers un-American — that would be just as unconstitutional.”

Volokh, a constitutional law professor and First Amendment expert, is joined in the lawsuit by online platforms Rumble and Locals, which are, respectively, a video platform similar to YouTube, and a community-building platform that allows creators to connect directly with their audience.

Bloggers, commenters, websites, and apps around the country are ensnared by the New York law due to its broad definition of “social media networks” as for-profit “service providers” that “enable users to share any content.” This vague wording means that the law can impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers — but no government entity can legally compel blogs or other internet platforms to adopt its broad definition of “hateful conduct.”

A recent report issued by Attorney General James’ office shows this law may be just the start of Empire State lawmaker’s attempt to silence protected speech online. Released in the wake of May’s tragic mass shooting by a white supremacist at a Buffalo supermarket, the report calls for further regulation of online speech — recommendations that, if adopted, would also violate the First Amendment.

“What happened in Buffalo broke the nation’s heart, and the impulse to take action is understandable. But violating expressive rights online won’t make us safer,” said FIRE senior attorney Jay Diaz. “In the name of combating ‘hateful conduct,’ New York’s new law reaches a vast amount of everyday commentary — jokes, political debates, random commentary, you name it. That’s a problem. The First Amendment protects all of us, and this new law doesn’t.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Katie Kortepeter, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org
​

and as luck would have it:

@jiggyfly your hateful comment just humiliated me as a man . . . I need to file a complaint with Tish now

 

https://www.wsj.com/articles/new-yo...aw-blog-hate-viewpoints-11669925813?mod=e2two

New York State Wants to Conscript Me to Violate the Constitution
A new law requires me to post a policy for dealing with ‘hate speech’ in comments on my blog.
By Eugene Volokh
Dec. 1, 2022 6:54 pm ET

New York politicians are slapping a badge on my chest. A law going into effect Saturday requires social-media networks, including any site that allows comments, to publish a plan for responding to alleged hate speech by users.

The law blog I run fits the bill, so the law will mandate that I post publicly my policy for responding to comments that “vilify, humiliate, or incite violence against a group” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It also requires that I give readers a way to complain about my blog’s content and obligates me to respond directly.

I don’t want to moderate such content and I don’t endorse the state’s definition of hate speech. I do sometimes delete comments, but I do it based on my own editorial judgment, not state command. Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.

The Supreme Court has carved out several narrow categories of unprotected speech, but hate speech isn’t one of them. Speech is protected except in the case of fighting words, true threats, defamation or incitement, and these exceptions are applied without regard to whether the speech in question is hateful. The court has wisely recognized that each of us has a different idea of what constitutes good or bad speech—and we can’t trust the government to decide which viewpoints are too hateful to merit legal protection.

But that’s not stopping New York from trying. The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can “vilify, humiliate, or incite violence against” groups based on protected class, even if that speech is protected by the First Amendment.

Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?

Nobody knows. But New York is imposing legal obligations on me and other platforms to pressure us to censor such speech. And though the New York law doesn’t itself require the removal of such speech, that may be the ultimate goal. Such censorship fits neatly within Attorney General Letitia James’s recent report that calls for sweeping regulations compelling further restrictions on speech the state considers hateful.

This is wrong, regardless of the viewpoint the state wants to eradicate. A law mandating a mechanism to report comments that vilify or humiliate the police, military or ordinary civilians would be similarly unconstitutional. Politicians can’t conscript private individuals into a state-mandated, viewpoint-based complaint system, especially for protected speech.

That’s why I am joining with the Foundation for Individual Rights and Expression to sue New York and defend our right to speak freely online. Online platforms Rumble and Locals are also joining the lawsuit.

The law was passed in response to the Buffalo white-supremacist mass shooting. It’s understandable to want to do something—anything—to prevent another horrific crime, but solutions must be effective and constitutionally valid. This law fails on both counts.

I started the Volokh Conspiracy to share interesting and important legal stories, not to police readers’ speech at the government’s behest. By challenging this law, I hope I can put down the badge and go back to my keyboard—because legislators can fight crime and respond to hate without violating the First Amendment or drafting me into the speech police.

Mr. Volokh is a co-founder of the Volokh Conspiracy blog and a law professor at the University of California, Los Angeles.
​

 

it requires the statement about how the site will respond . . . but the law is not particularly well-written, as usual. here's the law: https://www.nysenate.gov/legislation/bills/2021/A7865

"Requires social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform"

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there are literally dozens of statements made here in the D&D on a daily basis that would run afoul of this law . . . e.g., think of @deb4rockets's ignore list

 

I think in practice ClutchFans (to use this site as an example) arguably complies already: if someone makes a particularly hateful or egregious statement, plenty of posters will hit the "report" button, and mods have the discretion to ignore, discipline, or ban the offending poster. But I think there are many sites that don't have such mechanisms. Another case of a well-intended law but one which seems impractical given its broad scope. The problem here primarily one of "perceived offense." That just seems to open Pandora's box for all manner of complaints.

 

Volokh is based in California. The law applies to him--hence the FIRE lawsuit

 

https://blog.simplejustice.us/2022/...yorks-attempt-to-police-internet-hate-speech/

FIRE Challenges New York’s Attempt To Police Internet Hate Speech
by SHG

Not that it applies here, as SJ does not exist for “profit-making purposes,”* but the New York lege enacted a new law that would require any website that allows users to post public comments to become the hate speech police by calling it “hateful conduct” rather than hate speech, which is fully protected by the First Amendment and for which liability is precluded by Section 230 of the Communications Decency Act. Not that New York cared.

The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.

New York’s law doesn’t define “vilify,” “humiliate,” or “incite.” Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law’s scope entirely subjective.
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On the one hand, the law essentially leaves it to the complainer to decide what falls within its stricture. It someone feels something vilifies or humiliates someone or group, that’s close enough. On the other hand, the law requires a policy be crafted, a mechanism to complain and a “direct response,” whatever that means. It doesn’t say that the response must fix or satisfy the complainer, but merely respond. In other words, the law would putatively be satisfied by the Moonstruck “direct response.”

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Despite the shockingly bad language of the law, it appears that Tish James has plans to make sure that bloggers and websites become enforcers of her flavor of hate speech.

There can be no reasonable doubt New York will enforce the Online Hate Speech Law to strong–arm online services into censoring protected speech. The Attorney General’s intentions, in fact, could not be clearer; as recited, for example, in an October pressrelease, the Attorney General declared that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” becausean alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”
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That the law is otherwise a pointless and pathetic effort to turn bloggers and websites into New York AG Tish James’ hate speech police doesn’t change the fact that the law is a flagrant violation of the First Amendment despite the cutesy effort to characterize hate speech as “hateful conduct.”

Thankfully, FIRE, the Foundation for Individual Rights and Expression, has taken the lead in challenging this misbegotten law. The law is scheduled to go into effect December 3, 2022. Even though it does not apply to SJ, and I already have a means to complain on the side bar, it’s very much appreciated that FIRE attorneys Daniel Ortner. Jay Diaz and Eugene are doing the heavy lifting to challenge this mutt of a law.

*I was initially asked to be a plaintiff in the action, but since this blawg does not exist for profit-making purposes, my position is that I would not have had standing to challenge the law. It also struck me that, as a criminal defense lawyer, inviting the attorney general to seek discovery of my finances and practice put my clients at risk, something I cannot do. Thankfully, Eugene Volokh was willing to step forward to serve as named plaintiff.​

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