A Federal District Court Enters a Preliminary Injunction Barring the Enforcement of New York State’s Hateful Conduct Law

A Federal District Court Enters a Preliminary Injunction Barring the Enforcement of New York State’s Hateful Conduct Law Because it Would (A) Compel Speech by Social Media Companies, and (B) Chill Protected Speech

On December 3, 2022, New York’s “Social media networks: hateful conduct prohibited” law (“Hateful Conduct Law”) went into effect.  The Hateful Conduct Law obligated social media companies to create “a mechanism for social media users to file complaints about instances of ‘hateful conduct,’” and to create and post a “disclosure of the social media network’s policy for how it will respond to any such complaints.”  The Hateful Conduct Law broadly and vaguely defined “hate speech” 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.

The State of New York argued that the law was enacted in response to a racially motivated mass shooting in Buffalo, NY, in which Payton Gendron killed 10 people and wounded three.

Compelled Speech

The U.S. Supreme Court has long held that a state government or the federal government compelling an individual to make or endorse a statement, raises serious First Amendment concerns.  New York State’s requiring that social media companies post a policy statement consistent with the requirements of the Hateful Conduct Law constituted, according to the court, a type of compelled speech.

Under the Hateful Conduct Law, social media companies would have to post a policy statement that described how they would handle complaints filed by users who believed a statement by another user was somehow hateful.  Social media companies could say they would take no action whatsoever, but with respect to what constitutes “hateful conduct,” the policy statement would have to “endorse the state’s message about ‘hateful conduct.’”  Specifically, “each social media network’s definition of ‘hateful conduct’ must be at least as inclusive as the definition set forth in the law itself.”

Some social media companies might not have had a problem with issuing the policy statement required by the Hateful Conduct Law.  Some social media companies, however, take the position that freedom of speech is a basic right, and that they want to maintain a platform that respects First Amendment principles.  The Hateful Conduct Law forced these social media companies to create and publish a policy statement that they believed contradicted the primary message they wanted to convey to their users.

The State argued that the Hateful Conduct Law did not compel social media companies to discipline or ban any users that made statements falling within the definition of ‘hateful conduct.”  According to the State, social media companies would only have to allow users to file complaints with respect to comments that met the definition of “hateful conduct.”  The social media companies would not have to take any actions against the users against whom a complaint was made.

While a social media company did not have to take action with respect to any complaints it received under the Hateful Conduct Law, the State was still forcing the social media company to make a public statement that “hateful conduct” was subject to some form of special treatment irrespective of the First Amendment.  This is precisely the message certain social media companies did not want to make.

Given that the Hateful Conduct Law compelled speech, New York needed to prove that the Hateful Conduct Law served a compelling state interest and was narrowly tailored to achieve that goal.  The Court found that the Hateful Conduct Law was not narrowly tailored to achieve New York’s goal of reducing mass shootings.  The State was unable to show how the Hateful Conduct Law would reduce mass shootings, particularly when “the law does not even require that social media networks affirmatively respond to any complaints of ‘hateful conduct.’”  As a result, the Hateful Conduct Law violated the First Amendment.

Neither a state government nor the federal government can force you to say things you disagree with, unless very special circumstances exist.  If you believe a government entity is forcing you to say something you don’t agree with, you should consider talking to an attorney in order to protect your First Amendment rights.

Chilling Protected Speech

The court also found that the Hateful Conduct Law violated the First Amendment because it would chill a significant amount of speech that is protected by the First Amendment.

The court started its analysis by pointing out that what is commonly called hate speech is in fact protected by the First Amendment: “the First Amendment protects individuals’ right to engage in hate speech, and the state cannot try to inhibit that right, no matter how unseemly or offensive that speech may be to the general public or state.”  Despite comments made by many public officials and medial personalities, the U.S. Supreme Court has never created a hateful speech exemption to the First Amendment.

Further, the Hateful Conduct Law did not even clearly define what constituted hateful conduct: “[i]t is not clear what the terms ‘vilify’ and ‘humiliate’ mean for the purposes of the law.”  Users would have to guess what might fall within these categories, which could deter many from speaking at all.  Many users might view the filing of a complaint against them as something to be avoided for any number of reasons.  Typically, a user can’t know whether his or her comments would be viewed by someone else as “vilifying” or “humiliating.”  This type of uncertainty would deter many individuals from making comments that would not even constitute “hateful conduct.”

Despite what many public figures say, First Amendment rights are protected by the courts.  If you believe your ability to speak freely is being infringed, you should consider talking to an attorney who will work to protect your rights.