New York has enacted a law ostensibly requiring “social media platforms” to police “hate speech.” Here is an excerpt from that law, Section 394-CCC:

2. A SOCIAL MEDIA NETWORK THAT CONDUCTS BUSINESS IN THE STATE, SHALL PROVIDE AND MAINTAIN A CLEAR AND EASILY ACCESSIBLE MECHANISM FOR INDIVIDUAL USERS TO REPORT INCIDENTS OF HATEFUL CONDUCT. SUCH MECHANISM SHALL BE CLEARLY ACCESSIBLE TO USERS OF SUCH NETWORK AND EASILY ACCESSED FROM BOTH A SOCIAL MEDIA NETWORKS’ APPLICATION AND WEBSITE, AND SHALL 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.
3. EACH SOCIAL MEDIA NETWORK SHALL HAVE A CLEAR AND CONCISE POLICY READILY AVAILABLE AND ACCESSIBLE ON THEIR WEBSITE AND APPLICATION WHICH EXPLANATION INCLUDES HOW SUCH SOCIAL MEDIA NETWORK WILL RESPOND AND ADDRESS THE REPORTS OF INCIDENTS OF HATEFUL CONDUCT ON THEIR PLATFORM.

There are many problems with this law, according to FIRE:

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….

“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.) ….

“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.”

Here is FIRE’s complaint, filed the Federal District Court of New York, Southern District.

[Added Dec 2, 2022]

UCLA Law Professor Eugene Volokh, writing in the Wall Street Journal:

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 . . .