New York Passes Ridiculous, Likely Unconstitutional, Bill Requiring Websites To Have ‘Hateful Conduct’ Policies

from the i-hate-this dept

Okay, so this bill is nowhere near as bad as the Texas and Florida bills, or a number of other bills out there about content moderation. But that doesn’t mean it’s still not pretty damn bad. New York has passed a variation of a content moderation bill in that state that requires websites to have a “hateful conduct policy.”

The entire bill is pretty short and sweet, but the basics are what I said above. It has a very broadly defined hateful conduct definition:

“Hateful conduct” means the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

Okay, so first off, that’s pretty broad, but also most of that speech is (whether you like it or not) protected under the 1st Amendment. Requiring websites to put in place editorial policies regarding 1st Amendment protected speech raises… 1st Amendment concerns, even if it is left up to the websites what those policies are.

Also, the drafters of this law are trying to pull a fast one on people. By calling it “hateful conduct” rather than “hateful speech,” they’re trying to avoid the 1st Amendment issue that is obviously a problem with this bill. You can regulate conduct but you can’t regulate speech. Here, the bill tries to pretend it’s regulating conduct, but when you read the definition, you realize it’s only talking about speech.

So, yes, in theory you can abide by this bill by putting in place a “hateful conduct” policy that says “we love hateful conduct, we allow it.” But, obviously, the intent of this bill is to use the requirements here to pressure companies into removing speech that is likely protected under the 1st Amendment. That’s… an issue.

Also, given that the definition is somewhat arbitrary, what’s to stop future legislators from expanding the definition. We’ve already seen efforts in many places to make speaking negatively about the cops into “hate speech.”

Next, the law applies to “social media networks” but here, again, the definition is incredibly broad:

“Social media network” means service providers, which, for profit-making purposes, operate internet platforms that are designed to enable users to share any content with other users or to make such content available to the public.

There appear to be no size qualifications whatsoever. So, one could certainly read this law to mean that Techdirt is a “social media network” under the law, and we may be required to create a “hateful conduct” policy for the site or face a fine. But, the moderation that takes place in the comments is not policy driven. It’s community driven. So, requiring a policy makes no sense at all.

And now that’s also a big issue. Because if we’re required to create a policy, and we do so, but it’s our community that decides what’s appropriate, that means that the community might not agree with the policy, and might not follow what’s in the policy. What happens then? Are we subject to consumer protection fines for having a “misleading” policy?

At the very least, New York State pretty much just guaranteed that small sites like ours need to find and pay a lawyer in New York to tell us what we can do to avoid liability.

Do I want hateful conduct on the site? No. But we’ve created ways of dealing with it that don’t require a legally binding “hateful conduct” policy. And it’s absolutely ridiculous (and just totally disconnected from how the world works) to think that forcing websites to have a “hateful conduct” policy will suddenly make sites more aware of hateful conduct.

The whole thing is political theater, disconnected from the actual realities of running a website.

And that’s made especially clear by the next section:

A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. Such mechanism shall be clearly accessible to users of such network and easily accessed from both a social media networks’ application and website, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.

So, now every website has to build in special reporting mechanisms, that might not match with how their site actually works? We have the ability to fill out a form and alert us to things, but we also allow people to submit those reports anonymously. As far as I can tell, we might not be able to do that under this law, because we have to be able to “provide a direct response” to anyone who reports information to us. But how do we do that if they don’t give us their contact info? Do we need to build in a whole separate messaging tool?

Each social media network shall have a clear and concise policy readily available and accessible on their website and application which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform.

Again, this makes an implicit, and false, assumption that every website that hosts user content works off of policies. That’s not how it always works.

The drafters of this bill then try to save it from constitutional problems by pinky swearing that nothing in it limits rights.

Nothing in this section shall be construed (a) as an obligation imposed on a social media network that adversely affects the rights or freedoms of any persons, such as exercising the right of free speech pursuant to the first amendment to the United States Constitution, or
(b) to add to or increase liability of a social media network for anything other than the failure to provide a mechanism for a user to report to the social media network any incidents of hateful conduct on their platform and to receive a response on such report.

I mean, sure, great, but the only reason to have a law like this is as a weak attempt to force companies to take down 1st Amendment protected speech. But then you add in something like this to pretend that’s not what you’re really doing. Yeah, yeah, sure.

The enforcement of the law is at least somewhat limited. Only the Attorney General can enforce it… but remember, this is in a state where we already have an Attorney General conducting unconstitutional investigations into social media companies, as a blatant deflection from anyone looking to closely at the state’s own failings in stopping a mass shooting. The fines from violating the law are capped at $1,000 per day, which would be nothing for larger companies, but could really hurt smaller ones.

Even if you agree with the general sentiment that websites should do more to remove hateful speech on their sites, that still should make you very concerned about this bill. Because if states like NY can require this of websites, other states can require other kinds of policies, and other concepts to be put in place regarding content moderation.

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Comments on “New York Passes Ridiculous, Likely Unconstitutional, Bill Requiring Websites To Have ‘Hateful Conduct’ Policies”

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Valis (profile) says:

This bill is only a problem in non-democratic countries

In my (democratic) country hate speech is a crime. Hate speech is narrowly defined as an attack on marginalised people based on race, gender, LGBTQ status or religious belief, because we have human rights here. However, in fascist white supremacist nations like the USA, this type of bill would only perpetuate white supremacy and male patriarchy. Thus the USA is entrenching racism and bigotry with this stalking horse. Nothing wrong with the bill per se, the problem lies with the fascist, racist, misogynist, hate-filled, white patriarchal USA!

Anonymous Coward says:

Re: Re:

I’m not Valis, but yes, blasphemy is a crime in Singapore.

The law being written on? Not an issue in Singapore.

I do not consider Singapore to be democratic at all. So Valis’ comment is easily disproven.

If you don’t believe Singapore isn’t democratic, that’s fine, China and Russia also would not have problems having this law on the books.

Naughty Autie says:

Re: Re: Re:

[Y]es, blasphemy is a crime in Singapore.

That I can believe. I used to know someone from there about fourteen years back, and she told me that people there would get terribly offended if you mentioned the name of the prophet Muhammad without adding the phrase “may he live forever” despite Islam not being the majority religion there.

Anonymous Coward says:

Re: Re: Re:2

Malays in Singapore actually don’t care if you don’t add that when mentioning the Prophet Muhammed.

You basically can’t offend any religious folk in Singapore. Partly because at least 43% of the bureaucracy and at least a few very important politicians are actually thin-skinned “evangelical protestants”, ie, Republican white-worshippers, and largely because the religious make for the majority of voters.

Anonymous Coward says:

“Hateful conduct” means the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

Harassment is speech now? OK.

Blake Stacey (profile) says:

New York law: “Social media network” means service providers, which, for profit-making purposes, operate internet platforms that are designed to enable users to share any content with other users or to make such content available to the public.

Me, an intellectual: So, it’s not a “social media network” if we never intend to make a profit

(pushes imaginary call button) Get me an accountant from Hollywood!

Anonymous Coward says:

Re:

Because if one state accepts this bill without challenge, then other states could fail to recognize the unconstitutionality of it and pass their own similar bills, and then that’s everyone’s free speech rights in the john, not just the rights of New Yorkers. Martin Niemöller’s hindsight is now our forssight.

That Anonymous Coward (profile) says:

See both sides can have stupid fucking ideas that they want to make the law of the land.

Its almost like they are basically the same, the only difference being the ‘explanation’ of why what they want isn’t as bad as the other sides reason.

These are shitty ideas.
We have much larger problems, but people have been trained to listen for the dog whistle, hit the button, & get their pellet that reminds them how much better they are than those other guys.

We now have GQP clerks refusing to certify elections based on the ‘Big Lie’ and its other conspiracies that they are just sure, lacking any factual basis, HAVE to be true.
But the focus is on passing laws that demand racists be allowed to racist & that racists should not be tolerated…

I’ve been called mean things online, I don’t see a point in trying to outlaw people acting like asshats because giving them more attention is their goal.

Human nature is so tied up in ‘winning’ at everything that people are willfully blind to the fact that every ‘win’ against the other guy actually makes it fucking worse in general.

Give people the power to stop the shitty words/people they don’t want to see and move on. Trying to pass these laws just riles people up as the other side paints it as an attack on the ‘good’ people despite the fact most people would find the ‘real’ target of these laws to be abhorrent.

A nation where 1 man can claim an election was rigged, attempt a coup, lose 100’s of cases in court for lack of ANY FUCKING EVIDENCE AT ALL, and his supporters are still plotting to overturn the election & execute the traitors… I’mma thinking there are way worse problems we should focus on than if someone online can call me faggot without getting smacked with a ruler.

Tanner Andrews (profile) says:

How to Avoid Liability

At the very least, New York State pretty much just guaranteed that small sites like ours need to find and pay a lawyer in New York to tell us what we can do to avoid liability.

The easy answer, keeping in mind that I am not licensed in NY and can barely spell the name of the state, is to avoid NY. That is, have no offices there and no personnel there. You may also want to bar users from there, Zippo v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. Pa. 16-Jan-1997).

My hateful conduct policy:
1. You are a bunch of ignorant yankees
2. I do not care for, but may permit, your speech
3. I also dislike whoever broke “preview” on the new site

So, New York, if you want me you are going to have to find me, a thousand miles away, and you can pay so much an hour to sit in my office and discuss hate regulation as it applies outside of NY.

btr1701 (profile) says:

Jurisdiction

At the very least, New York State pretty much just
guaranteed that small sites like ours need to find
and pay a lawyer in New York to tell us what we can
do to avoid liability.

Why would you have liability? You’re a California-based company, yes? Unless you have offices or other physical presence in New York, why would you have to abide by New York law?

Merely putting up a site on the internet doesn’t subject you to the laws of every state, county and city in the nation, anymore than it subjects you to laws of every other country on earth.

Tanner Andrews (profile) says:

Re: liability in other states

erely putting up a site on the internet doesn’t subject you to the laws of every state

True. The common view is the Zippo sliding scale. If your web site is purely passive and makes no effort to be available and used in a particular state, then you probably cannot be reached. On the other hand, if yhour site is interactive, and you have members in a particular state, then they are likely to feel entitled. See Zippo Mfg v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. Pa, 1997) and the circuit courts of appeal cases adopting it.

You might be able to avoid it by expressly barring users from offending states. But maybe not. Talk to a lawyer in the state whose Long Arm you seek to avoid.

Tanner Andrews (profile) says:

Re: Not Well Informed

Merely putting up a site on the internet doesn’t subject you to the laws of every state

Says the person unfamiliar with Zippo Mfg v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. PA 1997), and the several circuit court cases adopting the standard from there.

Putting up an interactive web site may not mean that ``preview” works without javascript and its attendent evils, but it certainly does mean that you might be hauled into an unexpected and distant court, where you will be told that you should have expected it.

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