The constitutional limits on state regulation of digital "hateful conduct"

“ Moreover, the Hateful Conduct law is a content based regulation. The law requires that social media networks develop policies and procedures with respect to hate speech (or “hateful conduct” as it is recharacterized by Defendant) . As discussed, 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. ”

“ Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and 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. ”

“ Here, the Hateful Conduct Law requires social media networks to disseminate a message about the definition of “hateful conduct” or hate speech—a fraught and heavily debated topic today. Even though the Hateful Conduct Law ostensibly does not dictate what a social media website’s response to a complaint must be and does not even require that the networks respond to any complaints or take down offensive material, the dissemination of a policy about “hateful conduct” forces Plaintiffs to publish a message with which they disagree. ”

“ Social media websites are publishers and curators of speech, and their users are engaged in speech by writing, posting, and creating content. Although the law ostensibly is aimed at social media networks, it fundamentally implicates the speech of the networks’ users by mandating a policy and mechanism by which users can complain about other users’ protected speech. ”

“ Moreover, social media users often gravitate to certain websites based on the kind of community and content that is fostered on that particular website. Some social media websites—including Plaintiffs’—intentionally foster a “pro-free speech” community and ethos that may become less appealing to users who intentionally seek out spaces where they feel like they can express themselves freely.
The potential chilling effect to social media users is exacerbated by the indefiniteness of some of the Hateful Conduct Law’s key terms. ”

“ Plaintiffs argue that limiting the free expression of protected speech is not a compelling state interest and that the law is not narrowly tailored. While Defendant concedes that the Hateful Conduct Law may not be able to withstand strict scrutiny, she maintains that the state has a compelling interest in preventing mass shootings, such as the one that took place in Buffalo. ”

“ The Hateful Conduct law’s ban on speech that incites violence is not limited to speech that is likely to produce imminent lawless action. ↑ The Court also finds that severing parts of the law would not serve to save the entire statute. As stated in footnote four, while speech that incites violence is not protected by the First Amendment, whether speech does in fact incite violence is a fact-based inquiry. ”

“ Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. ”

“ Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. ”

“ Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. ”

“ It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ”

“ It is one of the misfortunes of the law that ideas become encysted in phrases, and thereafter for a long time cease to provoke further analysis.
Holmes, J., dissenting, in Hyde v. United [p544] States, 225 U.S. 347, 384, at 391. The phrase "clear and present danger," in its origin,
served to indicate the importance of freedom of speech to a free society, but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. ”

“ Free speech -- the glory of our system of government -- should not be sacrificed on anything less that plain and objective proof of danger that the evil advocated is imminent. On this record, no one can say that petitioners and their converts are in such a strategic position as to have even the slightest chance of achieving their aims. ”

“ Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. ”

“ Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States. ”

“ The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.
The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. ”

“ Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win. ”

“ It is a sobering fact that, in sustaining the convictions before us, we can hardly escape restriction on the interchange of ideas. [p550]
We must not overlook the value of that interchange. Freedom of expression is the well spring of our civilization -- the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon expression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. ”

“ We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. [p528]
Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment of clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions reporting the effort to reconcile free speech with the interests with which it conflicts. ”

“ It does an ill service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma. ”

“ Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. ”

“ A plain reading of the Hateful Conduct Law shows that Plaintiffs’ argument is without merit. The law imposes liability on social media networks for failing to provide a mechanism for users to complain of “hateful conduct” and for failure to disclose their policy on how they will respond to complaints. N.Y. Gen. Bus. Law § 394-ccc (5) . The law does not 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”. ”

“ If you love freedom, if you think the human condition is dignified by privacy, by the right to be left alone, by the right to explore your weird ideas provided you don't hurt others, then you have common cause with the kids whose web-browsers and cell phones are being used to lock them up and follow them around.
If you believe that the answer to bad speech is more speech -- not censorship -- then you have a dog in the fight.
If you believe in a society of laws, a land where our rulers have to tell us the rules, and have to follow them too, then you're part of the same struggle that kids fight when they argue for the right to live under the same Bill of Rights that adults have. ”

“ For Rumble to be in compliance with the law, it would need to publish a policy expressly indicating that its users have a mechanism to complain about the “hateful conduct” as defined by the Hateful Conduct Law, not removable content as defined by Rumble.
Likewise, Locals’ website identifies a few categories of content that it may remove from its website, including content that “threatens violence against an individual or group of people.” ”

“ 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. ”

“ There is no serious question that defendants’ posting of DeCSS violates the DMCA.
Defendants’ constitutional argument ultimately rests on two propositions—that computer code, regardless of its function, is “speech” entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government. But their argument is baseless.
Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. ”

“ Just as computer code cannot be excluded from the area of First Amendment concern because it is abstract and, in many cases, arcane, the long history of First Amendment jurisprudence makes equally clear that the fact that words, symbols and even actions convey ideas and evoke emotions does not inevitably place them beyond the power of government. ”

“ Focusing attention on constitutionality tends to make constitutionality synonymous with wisdom. When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law ”