N.Y. Judge Blocks Hateful Conduct Law on First Amendment Grounds

Amid the “national commitment to the free expression of speech,” even where that speech is “offensive or repugnant,” U.S. District Judge Andrew Carter for Southern New York, in a Feb. 14 opinion and order (docket 1:22-cv-10195), granted the motion of three online platform operators for a preliminary injunction blocking the enforcement of New York’s new Hateful Conduct Law. Carter said the law “chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal,” said his opinion. The law requires that social media networks install a mechanism for users to file complaints about allegedly hateful conduct and disclose policies for how they will respond to any such complaints. The plaintiffs’ Dec. 6 motion for preliminary judgment said they have a well-founded fear that the law will be enforced against their online platforms, and they're likely to prevail on the merits because the law burdens and compels speech, is overbroad and void for vagueness, and is preempted by the Communications Decency Act. 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 the state,” said Carter’s order. “This could have a profound chilling effect on social media users and their protected freedom of expression.” He denied their CDA claims, saying the law doesn’t impose liability on social media networks for failing to respond to an incident of hateful conduct, nor does it impose liability on the network for its users’ own hateful conduct. The law doesn’t impose liability on the plaintiffs as publishers in “contravention” of the CDA, said Carter.