On May 14, 2022, a white supremacist launched a deadly attack at a grocery store in Buffalo, New York, killing ten black people and wounding three others. New York Attorney General Letitia James issued a detailed report on October 18 that examined the incident. That report found abundant evidence that social media platforms had allowed the shooter to voice his hatreds in ways that led him to commit these atrocities. At no point did James try to bring legal action against the platforms, doubtless thinking that it would be hard to prove that complex causal connection in court or overcome potential First Amendment objections (which give explicit protection to white supremacists and other bigoted groups) to any such prosecution.

Instead, New York took a different path when it passed Section 394-CCC, effective as of December 3, 2022. That legislation targets not just extremist social media sites but all such platforms that host user-originated content. Thus, any social media network accessible in New York (which is all of them) now has a duty to ensure that its platform is not used “to vilify, humiliate, or incite violence” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity, or gender
expression.” More concretely, each network must also create “a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” Once reported, the platform must explain to the reporting party “how the matter is being handled.” Any platform that “knowingly fails to comply with the requirements of this section shall be assessed a civil penalty for such violation by the attorney general not to exceed one thousand dollars.” Each day of noncompliance counts as a separate offense. 

The due-process objections to this threadbare scheme could well prove fatal. The law sets out no criteria as to how the attorney general (and presumably her staff) shall assess multiple penalties, which in aggregate could run to many thousands of dollars against any particular platform. The attorney general has the power to “take proof,” to “determine” the relevant facts, and “to issue subpoenas in accordance with the civil practice law and rules.” The rights, if any, of the parties charged under this law to receive notice of the charge, present witnesses, or have a review by a neutral party are not set out.   

This approach seems born of regrettable desperation. There is no disagreement in cases of this sort that the shooter, if still alive, should face severe punishment for his actions. Unfortunately, the direct remedy has at most limited effectiveness as a deterrent, especially in those common cases of mass killings followed by suicide. Thus, lawmakers and activists have engaged in a sustained effort to find workable mechanisms to prevent such heinous crimes. 

That path of prevention must stay within narrow limits to avoid the massive overreach that is all too evident here. New York makes no secret of its strong commitment to gun control laws. The deterrence effect of those laws seems far from perfect, given that the law removes guns from the hands of law-abiding citizens who could take steps to prevent further tragedy. Indeed, the Supreme Court majority that struck down New York’s restrictive gun law in New York State Rifle & Pistol Association v. Bruen asked the pointed question: “Does the dissent think that laws [that make obtaining a legal gun difficult] prevent or deter such atrocities,” in light of the mass shooting in Buffalo? No one believes current deterrents work well.

Similar doubts arise regarding the effectiveness of platform regulation. The vitriol that appears on the handful of sites mentioned in the report—4chan, 8kun, Discord, Reddit and Twitch—is no secret. Despite this, at no point in her report did Attorney General James mention any steps that she or her office took, or should have taken, to curb the actions of these sites before or after the Buffalo massacre. Why this passive approach? If James thought that various forms of hate speech were indeed protected by the First Amendment, then there is no reason for her to dragoon a huge class of innocent platform operators into monitoring lawful user behavior. If, however, she thought that some forms of hate speech were unprotected, she does not need the platforms to oversee activity that she can prosecute herself. Either way, there appears no excuse for this indiscriminate delegation of state power to self-appointed private parties, many of whom have their own axes to grind and have no business wielding the police power.

In his recent Wall Street Journal column, UCLA Law Professor Eugene Volokh, a First Amendment expert and founder of the well-regarded Volokh Conspiracy blog, rightly protests his conscription into government service. He stresses the incurable vagueness of key terms like “humiliate,” which depend too much on the sentiments and sensitivities of the ostensible victim of alleged hate speech. It takes little imagination to posit that a defender of abortion rights to the end of pregnancy could feel humiliated by critics who take to the traditional line that abortion should be punished because human life begins at conception. Similarly, anyone with a skeptical stance on climate change, the CDC response to COVID-19, or any other emotionally charged issue will necessarily take the risk that hundreds of angry critics could organize a coordinated attack on political organizations that do not toe the progressive line. From there it would be easy for James, whose October report flaunts her own brand of progressive politics, to initiate actions against any or all of them. 

To make matters worse, this legislation gives no indication of what would count as an adequate response by a platform that receives a lengthy or complex protest note. It is easy to imagine the initial complainant coming back with further claims that the initial response was somehow inadequate, especially if the platform does not remove the material, even if constitutionally protected. Nothing whatsoever prevents these parties from referring the matter to the attorney general if they are unhappy with the platform response. The law thus engages in a dangerous delegation of enforcement powers to private individuals with their biases.

It would be a national disgrace to saddle these media companies, many of which operate on small budgets, with massive administrative costs that effectively function as a presumption of guilty conduct without any evidence of guilt. Volokh and his co-plaintiffs are therefore right to seek the immediate invalidation of the law under a strict scrutiny standard instead of having to defend against a blizzard of charges once the law is allowed to go into operation.

The attorney general already has ample powers of enforcement to charge any purveyor of hate speech in the rare cases where it might cross some constitutional law. Thus the hundreds of thousands of nationwide websites need do nothing at all, unless James, against all odds, tries to spell out an offense against an actual perpetrator. Let her try to prosecute individual cases now under existing law, without the benefit of a procedural fabrication against platform operators.

There is yet further lurking danger. New York is only one state, and entities like the Volokh Conspiracy operate nationwide, drawing authors from many other places. Yet since all social platforms may be accessed from anywhere, New York law, as the squeakiest wheel, will have the power to determine the burdens on sites that operate in forty-nine other states. Many of these are red states bitterly opposed to the policies of the New York law, but the current setup leaves such states powerless to stop New York’s agitation. At the same time, many blue states may well regard the New York law as a model for similar legislation, which may give rise to the same or even greater penalties. Should other states follow New York’s lead, vulnerable platforms will have to face multiple overlapping threats from different jurisdictions, each with its own substantive standards and distinctive procedures. The risk that some hostile state will find any given platform noncompliant will quickly grow until the only safe course of action will be for controversial political sites to go out of business. 

At this point, it becomes all too clear that the New York law is in fatal conflict with the traditional First Amendment view, as articulated by Justice Brennan in New York Times v. Sullivan (1964), that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times protected civil rights activists, both black and white, against the state of Alabama, then determined to squash dissent. Close to sixty years later, Justice Brennan’s approach needs to be revived against the potential onslaught represented by the New York law. However, even with this massive change in political fortunes, the same bedrock principles of freedom of speech should protect today’s libertarian and conservative groups against New York’s novel and unconstitutional form of repression.

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