$1000/day fine planned for violators

by Dr. John Banzhaf

New York has a new law which purports to require all blog operators to have a policy dealing with so-called hateful speech posted by third parties, and also to have a mechanism to respond to user complaints about such posts, but there seems to be an easy way for those concerned about this attempt to regulate speech to avoid the $1000-a-day fines New York’s Attorney General plans to impose for violations.

Law professor Eugene Volokh, a well known First Amendment advocate, has declared the law an unconstitutional restriction on protected speech, and has filed a lawsuit to nullify it, saying: “New York politicians are slapping a badge on my chest. . . By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment. .. 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.”

But another well known law professor who also has also won several free speech cases, John Banzhaf, says that while he fully supports Volokh’s efforts, there’s an easy way for blog operators to avoid the law, and the apparently unconstitutional burdens it seeks to impose on bloggers in New York State as well as elsewhere – since it apples to any “social media network that conducts business in the state.”

New York now has a law [N.Y. Gen. Bus. Law § 394-CCC] which purports to require those who “for profit-making purposes [e.g. permit ads] operate internet platforms that are designed to enable users to share any content with other users or to make such content available to the public” to have “a clear and concise policy . . . [about how] such social media network will respond and address the reports of incidents of hateful conduct on their platform.”

It also purports to require each blog operator to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct” and also a method to “allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.”

The law targets what it calls “hateful conduct” – although it is actually just the posting of speech/messages on the Internet – which it defines as “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.”

Because this very sparse description is not further defined, it might be interpreted to mean any statement which a sensitive person might find critical or not even sufficiently respectful of his identity group.

But, since the law does not require any specific policy regarding what it calls “hateful conduct,” Prof. Banzhaf suggests posting as a “a clear and concise policy” something like any of the following:

■ “We won’t do anything about speech defined as hateful under this law.” OR

■ “We take no action because even hate speech is protected by the First Amendment to the U.S. Constitution” OR

■ “We permit the posting of even hateful speech, and will bring lawsuits under 42 U.S.C. § 1983 against any state official who tries to stop us for exercising our constitutional rights to do so.”

Interestingly, New York State has itself suggested, probably to improve its litigating position, that policies such as these would comply with the statute and be lawful because “the law is content-neutral” – although opponents dispute this characterization and maintain that it is viewpoint-based.

In order to comply with the requirement for a mechanism which blog readers who are offended can use to report violations, and to receive a “direct response” “informing them of how the matter is being handled,” Banzhaf suggests something like:

■ “Thank you for your email. In accordance with our stated policy, we aren’t going to do anything.” OR

■ “We will post your entire comment – including personal identifying information – on our blog” OR

■ “In accordance with our policy, we will do nothing more than use an automatic email forwarding program to forward your email to the following New York State officials:

kathleen.hochul@exec.ny.gov; stacy.lynch@exec.ny.gov; elizabeth.fine@exec.ny.gov; letitia.james@ag.ny.gov; jennifer.levy@ag.ny.gov; lawrence.schimmel@ag.ny.gov

Professor Banzhaf also urges all other bloggers apparently subject to this new law to send emails to the officials noted above to explain their views regarding this new law.

Editor’s note: Vermont Daily Chronicle will monitor any proposed similar legislation for the 2023-24 Vermont Legislature.