Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 15 of 21
Although preventing and reducing the instances of hate-fueled mass shootings is certainly a compelling governmental interest, the law is not narrowly tailored toward that end.[1] Banning conduct that incites violence is not protected by the First Amendment[2], but this law goes far beyond that.
While the OAG Investigative Report does make a link between misinformation on the internet and the radicalization of the Buffalo mass shooter (Sawyer, Decl., Ex. A, ECF No. 20-1 at 23–26), even if the law was truly aimed at reducing the instances of hate-fueled mass shootings, the law is not narrowly tailored toward reaching that goal. It is unclear what, if any, effect a mechanism that allows users to report hateful conduct on social media networks would have on reducing mass shootings, especially when the law does not even require that social media networks affirmatively respond to any complaints of “hateful conduct”. In other words, it is hard to see how the law really changes the status quo—where some social media networks choose to identify and remove hateful content and others do not.
- ↑ The memorandum in support of the legislation that was presented to the New York State Assembly ahead of the floor debate lists the justification for the law as “concerns about misinformation that is spread on social media networks.” (Sawyer Decl., Ex. C, ECF No. 20-3.) While the law was enacted in the wake of the Buffalo mass shooting, the original iteration of the bill was drafted in the wake of the events of January 6, 2021 (Compl., ECF No. 1 ¶ 30; Sawyer Decl., Ex. D, ECF No. 20-4 at 182–183), further suggesting that the law is really aimed at misinformation on the internet. However, the First Amendment’s shielding of hate speech from regulation means that a state’s desire to reduce this type of speech from the public discourse cannot be a compelling governmental interest.
- ↑ The Supreme Court has held that speech that consists of “fighting words” and speech that incites violence or lawlessness are not protected by the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). For speech to incite violence, “there must be ‘evidence or rational inference from the import of the language, that [the words in question] were intended to produce, and likely to produce, imminent’ lawless action.” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 70 F. Supp. 3d 572, 581 (S.D.N.Y. 2015), vacated on other grounds, 109 F. Supp. 3d 626 (S.D.N.Y. 2015) (citations omitted). The Hateful Conduct law’s ban on speech that incites violence is not limited to speech that is likely to produce imminent lawless action.
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