Not Canada, Yet
Last week I covered a Canadian law that would have had the owners of Medium in Canadian hoosegows if the law was ever enforced against Leftbloggers on Medium.
What I did not know because I am not omniscient, despite what you may think, was that a law had been passed in New York state, aka “South Canada,” that was a close relative to that Canadian law.
Professor Turley explains:
Like many attacks on free speech, the New York law came in response to a tragedy. On May 14, 2022, an avowed white supremacist killed ten people and wounded three others in Buffalo, New York. He used Twitch to livestream his attack on the Black shoppers.
Governor Kathy Hochul immediately used the massacre to renew attacks on social media companies and to demand new regulations of speech. She directed the Office of the Attorney General (“OAG”) to investigate “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting” and to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.”
She also went public with a declaration that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because the alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”
The result of Hochul’s call was The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited” that went into effect on December 3, 2022. The law defines “hateful conduct” as
“[T]he 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.”
N.Y. Gen. Bus. Law § 394-ccc(1)(a). The underlying “conduct” of vilification, humiliation, or incitement is left undefined, but it falls within the scope of the law if it is directed toward an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression.”
The law seems to presuppose a direct correlation between speech and criminal action where white supremacists are concerned, which makes you wonder what is going on in Chicago every weekend.
I explained that American law differs from Canadian law. Apparently, someone was reading because this week, a New York judge struck down Governor Hochul’s grab for the totalitarian brass ring.
Legal Insurrection reports:
From the Order:
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.
File away the part about “ the First Amendment protects from state regulation speech that may be deemed “hateful”.”
There simply is not a “hate speech exception” to the First Amendment.
As much as the Reichstag Arsonists may want there to be. (Read the book!)
So, we avoid the Canadian fate for another day.
But that is a topic for another day.
