Posted on December 2, 2022

New York State Wants to Conscript Me to Violate the Constitution

Eugene Volokh, Wall Street Journal, December 1, 2022

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. {snip} By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.

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.


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. {snip}