Judge Carter will hold a preliminary injunction hearing next week in a case challenging, on First Amendment grounds, a new New York law (N.Y. Gen. Bus. L. § 394-ccc) that requires social media platforms to develop policies for addressing, and for responding to user complaints about, “hateful conduct.”
The challengers are operators of online platforms who argue that they should not be forced to police what the state vaguely defines as “hateful” conduct. Merely having to separately define what is “hateful” conduct, and provide special treatment to users who complain about conduct meeting that definition, amounts to an endorsement of the State’s views, according to the challengers:
Ultimately, New York cannot force Plaintiffs to undermine their own pro-free speech messages. Plaintiffs intentionally maintain moderation policies and practices that do not arbitrarily exclude viewpoints that some may perceive as “hateful.”
The Online Hate Speech Law unconstitutionally compels Plaintiffs to endorse the State’s message that “hate speech,” as defined by the State, is of such societal concern that it requires a dedicated policy and necessitates direct response. Being forced to endorse this message will limit the open debate that Plaintiffs prefer to encourage.
In opposition, the State argues that the new law doesn’t regulate speech at all, but simply requires platforms to establish a “complaint box” that they are free to essentially ignore:
Plaintiffs cannot show a likelihood of success on their claims because § 394-ccc does not regulate speech or infringe upon Plaintiffs freedom of speech or other constitutional rights. Section 394-ccc, which only applies to social media networks doing business for profit in New York, amounts to little more than a requirement that covered social media networks establish an electronic complaint box.
Social media networks subject to § 394-ccc are required only (1) to provide a readily accessible means for individual users to report hateful conduct and a means to directly respond to such reports, and (2) to state what the social media network’s own policy is with respect to how it will respond to and address such reports if and when it receives them. This prevents user confusion and deception about a network’s policies. There is no requirement that a social media network adopt any particular policy and no requirement that a social media network respond to or address a report in any particular manner. A social media network may have a policy to do nothing.