That’s Latitia James. Now she’s on the track of people writing what she may consider “hate speech”, in the comments sections of blogs. Which would be protected under the First Amendment of the US Constitution, but which she doesn’t like. So she wants the blog owners to go after the commenters. Not just moderating, but reporting them!
From an Occasional Reader, the link to a piece by UCLA professor Eugene Volokh. Who is incensed at this overreach. Rightly so, in my view.
Most of the article is under the fold, with thanks to the WSJ. The link to the article is here. Professor Volokh strikes me as a sound, sane, sensible voice on this issue.
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.Mr. Volokh is a co-founder of the Volokh Conspiracy blog and a law professor at the University of California, Los Angeles.
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. The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can “vilify, humiliate, or incite violence against” groups based on protected class, even if that speech is protected by the First Amendment.
Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?
Nobody knows. But New York is imposing legal obligations on me and other platforms to pressure us to censor such speech. And though the New York law doesn’t itself require the removal of such speech, that may be the ultimate goal. Such censorship fits neatly within Attorney General Letitia James’s recent report that calls for sweeping regulations compelling further restrictions on speech the state considers hateful.
This is wrong, regardless of the viewpoint the state wants to eradicate. A law mandating a mechanism to report comments that vilify or humiliate the police, military or ordinary civilians would be similarly unconstitutional. Politicians can’t conscript private individuals into a state-mandated, viewpoint-based complaint system, especially for protected speech.
That’s why I am joining with the Foundation for Individual Rights and Expression to sue New York and defend our right to speak freely online. Online platforms Rumble and Locals are also joining the lawsuit.
The law was passed in response to the Buffalo white-supremacist mass shooting. It’s understandable to want to do something—anything—to prevent another horrific crime, but solutions must be effective and constitutionally valid. This law fails on both counts.
I started the Volokh Conspiracy to share interesting and important legal stories, not to police readers’ speech at the government’s behest. By challenging this law, I hope I can put down the badge and go back to my keyboard—because legislators can fight crime and respond to hate without violating the First Amendment or drafting me into the speech police.
