Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm an order blocking a so-called hateful conduct law, enacted by the state of New York, from taking effect.

General Business Law Section 394-CCC uses vague terms (e.g., “vilify,” “humiliate”) to define hate speech, and it forces covered websites to publish a policy setting out how they will “respond [to] and address” complaints regarding such speech. As TechFreedom’s brief explains, the law is an insidious attack on private entities’ decisions about what speech they will and will not carry.

“New York’s law flouts the well-established First Amendment protection for editorial judgment,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Section 394-CCC is a state effort to distort private entities’ editorial decisions by forcibly exposing, scrutinizing, and punishing decisions the government doesn’t like. On its face, the statute is a compelled-speech provision, which is bad; but by targeting and changing editorial decisions, the statute also functions as a content-based speech regulation, which is even worse.”

“The experts agree: the censorship-through-disclosure approach encoded in Section 394-CCC is novel and unprecedented,” Barthold continued. “We canvassed 59 media and Internet law experts, asking them if they could think of a law that imposes editorial disclosure requirements on traditional publishers. None of the more than two dozen experts who responded identified a pre-Internet law like New York’s. Section 394-CCC’s novelty as a policy approach highlights the exceptional and extreme nature of New York’s intervention into editorial processes.”

“The legislators who enacted this law have embraced Internet exceptionalism,” Barthold concluded. “That is, they want to regulate the Internet more harshly than other comparable media. The Court should shut their effort down and uphold the First Amendment.”

TechFreedom was pleased to have Professor Eric Goldman, of the Santa Clara University School of Law, join the brief. The case is Volokh v. James, No. 23-356 (2d Cir.).


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