Social Media Hate Speech Accountability Act: NY’s Bid to Police Online Comments Is Illegal

On Monday, the State of New York will debut a new statute — the Social Media Hate Speech Accountability Act — which, impressively enough, manages to violate the First Amendment in two discrete ways. As Eugene Volokh notes in the Journal, New York’s law requires any website that features comments to contrive a policy for dealing with material that might “‘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,’” and demands that its owner must “give readers a way to complain about” it if they see it. This is doubly illegal. Not only is there no such thing as “hate speech” under American law — and thereby no categorical basis for the government of New York to demand anything of those who supposedly host it. But, by insisting that website owners publish explanations of their moderation rules and promise to respond to cavilers, the state is engaging in compelled speech.

The response to this from any self-respecting American must be no less than, “Oh yeah — how about you shove it?” What the private owners of social networks, blogs, message boards, and so forth choose to do with their users’ content is up to them, not to the State of New York — or any other government, for that matter. At the bleeding edges of the First Amendment, there exist a handful of exceptions to the right to free speech: incitement to imminent illegal action, defamation, and true threats, for example. But the United States already has rules governing those oddities, and the operators of community-driven websites are already obliged to follow them. As a matter of taste, it may well behoove America’s online moderators to frown upon comments that “vilify” or “humiliate” others, to disdain users who disparage their fellow citizens based on their “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression,” and to build mechanisms via which customers can flag abuse. But they don’t have to.

About the Author

Charles C. W. Cooke

Charles C. W. Cooke is a senior editor at National Review and the host of The Charles C. W. Cooke Podcast.

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On Monday, the State of New York will debut a new statute — the Social Media Hate Speech Accountability Act — which, impressively enough, manages to violate the First Amendment in two discrete ways. As Eugene Volokh notes in the Journal, New York’s law requires any website that features comments to contrive a policy for dealing with material that might “‘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,’” and demands that its owner must “give readers a way to complain about” it if they see it. This is doubly illegal. Not only is there no such thing as “hate speech” under American law — and thereby no categorical basis for the government of New York to demand anything of those who supposedly host it. But, by insisting that website owners publish explanations of their moderation rules and promise to respond to cavilers, the state is engaging in compelled speech.

The response to this from any self-respecting American must be no less than, “Oh yeah — how about you shove it?” What the private owners of social networks, blogs, message boards, and so forth choose to do with their users’ content is up to them, not to the State of New York — or any other government, for that matter. At the bleeding edges of the First Amendment, there exist a handful of exceptions to the right to free speech: incitement to imminent illegal action, defamation, and true threats, for example. But the United States already has rules governing those oddities, and the operators of community-driven websites are already obliged to follow them. As a matter of taste, it may well behoove America’s online moderators to frown upon comments that “vilify” or “humiliate” others, to disdain users who disparage their fellow citizens based on their “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression,” and to build mechanisms via which customers can flag abuse. But they don’t have to.