EFF Urges Second Circuit to Affirm Injunction of New York’s Dangerous Online “Hateful Conduct” Law

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EFF, along with the ACLU, urged the U.S. Court of Appeals for the Second Circuit to find a New York statute that compels platforms to moderate online speech that falls within the state’s particular definition of “hateful conduct” unconstitutional.

The statute itself requires covered social media platforms to develop a mechanism that allows users to report incidents of “hateful conduct” (as defined by the state), and to publish a policy detailing how the platform will address such incidents in direct responses provided to each individual complainant. Noncompliance with the statute is enforceable through Attorney General investigations, subpoenas, and daily fines of $1000 per violation. The statute is part of a broader scheme by New York officials, including the Governor and the Attorney General, to unlawfully coerce online platforms into censoring speech that the state deems “hateful.”

The bill was rushed through the New York legislature in the aftermath of last year’s tragic mass shooting at a Buffalo, NY supermarket. At the same time, the state launched an investigation into social media platforms’ “civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.” In the months that followed, state officials alleged that it was their perceived “lack of oversight, transparency, and accountability” over social media platforms’ content moderation policies that had caused such “dangerous and corrosive ideas to spread,” and held up this “hateful conduct” law as the regulatory solution to online hate speech. And, when the investigation into such platform liability concluded, Attorney General Letitia James called for platforms to be held accountable and threatened to push for measures that would ensure they take “reasonable steps to prevent unlawful violent criminal content from appearing on their platforms.”

EFF and ACLU filed a friend-of-the-court brief in support of the plaintiffs: Eugene Volokh, a First Amendment scholar who runs the legal blog Volokh Conspiracy, the video sharing site Rumble, and the social med

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