Report from MediaPost
In Brief – New York’s highest court has agreed to review the state’s “Hateful Conduct Act” at the request of the US Second Circuit of Appeals which is considering a challenge to the law that requires social platforms to accept complaints about offensive speech and disclose how they’re handled. The measure defines hateful conduct as the use of social media 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” and requires social media companies to have and publish policies to address it. Federal District Court Judge Andrew Carter agreed with a First Amendment-based legal challenge brought by video platform Rumble and legal blog operator Eugene Volokh. A three-judge appeals panel ruled 2-1 that the text could be read in different ways, and its constitutionality hinges on how New York judges would interpret it. If the law “merely mandates that social media networks disclose their content moderation policies — whatever they may be — without requiring those policies to specifically reference or otherwise encompass ‘hateful conduct,’” the law would be comparable to other product disclosure requirements that have been held constitutional, but requiring that platforms reference what the law defines as “hateful conduct” would be unconstitutional.
Context – After Florida and Texas enacted laws in 2021 to pressure social media platforms to stop so-called “viewpoint discrimination”, California and New York passed laws the next year to push platforms from the opposite direction, attempting to press for more aggressive policing of alleged hate speech and harassment. Last year, the Supreme Court called for deeper dives on the First Amendment implications of the Florida and Texas laws for more platforms. California’s law has been blocked and if New York’s law cannot require any mention of hate speech, it would appear neutered. New York followed in 2024 with the “Stop Hiding Hate Act”, a second content moderation law that has been challenged by X on similar First Amendment grounds.