In an opinion Tuesday, Judge Carter issued an injunction against New York’s newly-enacted online hate speech law (see our prior coverage here).
The law would require social media platforms to develop policies for addressing, and responding to user complaints about, “hateful conduct.” Judge Carter found that, in doing so, the law impermissibly compelled the challengers — Rumble and other “pro-free speech” online platforms — to engage in speech with which they disagreed:
[T]he Hateful Conduct Law requires social media networks to disseminate a message about the definition of “hateful conduct” or hate speech—a fraught and heavily debated topic today. Even though the Hateful Conduct Law ostensibly does not dictate what a social media website’s response to a complaint must be and does not even require that the networks respond to any complaints or take down offensive material, the dissemination of a policy about “hateful conduct” forces Plaintiffs to publish a message with which they disagree. Thus, the Hateful Conduct Law places Plaintiffs in the incongruous position of stating that they promote an explicit “pro-free speech” ethos, but also requires them to enact a policy allowing users to complain about “hateful conduct” as defined by the state.
Judge Carter also found that the law’s vague definitions could have a “profound chilling effect” on speech:
[The new law] could have a profound chilling effect on social media users and their protected freedom of expression. Even though the law does not require social media networks to remove “hateful conduct” from their websites and does not impose liability on users for engaging in “hateful conduct”, the state’s targeting and singling out of this type of speech for special measures certainly could make social media users wary about the types of speech they feel free to engage in without facing consequences from the state. This potential wariness is bolstered by the actual title of the law— “Social media networks; hateful conduct prohibited” —which strongly suggests that the law is really aimed at reducing, or perhaps even penalizing people who engage in, hate speech online.
. . . The potential chilling effect to social media users is exacerbated by the indefiniteness of some of the Hateful Conduct Law’s key terms. It is not clear what the terms like “vilify” and “humiliate” mean for the purposes of the law. While it is true that there are readily accessible dictionary 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 social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group 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 government regulation.