A recent law passed by New York targeting online hate speech has been under scrutiny in recent weeks. The Social Media Hate Speech Accountability Act requires any social-media platform that operates in New York to have a channel through which its user can report hate speech and then obligates the platform to respond directly to those reports. A refusal to follow these requirements can result in a fine.
Critics of the law have stated that it is a direct attack on the First Amendment and freedom of speech. Simply put, the First Amendment does not prohibit hate speech. The only speech that is prohibited by the Constitution includes speech that is likely to incite imminent lawless action. Unless the hate speech that is targeted by New York’s law falls into this category, New York is prohibited from regulating such speech.
The law aims to curb the spread of hateful speech on social media platforms in New York that target any religion, race, color, ethnicity, nationality, disability, sex, sexual orientation, gender identity, or gender expression. Although this type of speech is vile, it is legal as long as it is not likely to incite imminent lawless action.
Rumble, a social media platform, has already filed a lawsuit against New York Attorney General Letitia James. Rumble is represented in the lawsuit by the Foundation for Individual Rights and Expression (FIRE). Constitutional law professor Eugene Volokh has also joined in the lawsuit.
It is clear that New York’s law is in direct violation of the First Amendment. Compelling private actors to regulate certain protected speech on its platforms is illegal. Social media platforms can regulate speech on their own platforms as they wish, but when the government is telling them what speech should be regulated then there is a constitutional issue.
