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NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas

from the just-stop dept

We've joked in the past about how Republicans hate Section 230 for letting websites moderate too much content, while Democrats hate it for letting websites not moderate enough content. Of course, the reality is they both are mad about content moderation (at different extremes) because they both want to control the internet in a manner that helps "their team." But both approaches involve unconstitutional desires to interfere with 1st Amendment rights. For Republicans, it's often the compelled hosting of speech, and for Democrats, it's often the compelled deletion of speech. Both of those are unconstitutional.

On the Republican side, we've already seen states like Florida and Texas sign into law content moderation bills -- and both have been blocked for being wholly unconstitutional.

We've already heard that some other Republican-controlled states have shelved plans for similar bills, realizing that all they'd be doing was setting taxpayer money on fire.

Unfortunately, it looks like the message has not made its way to Democratic-controlled states. California has been toying with unconstitutional content moderation bills, and now NY has one as well. Senator Brad Hoylman -- who got his law degree from Harvard, where presumably they teach about the 1st Amendment -- has proudly introduced a hellishly unconstitutional social media bill. Hoylman announces in his press release that the bill will "hold tech companies accountable for promoting vaccine misinformation and hate speech."

Have you noticed the problem with the bill already? I knew you could. Whether we like it or not, the 1st Amendment protects both vaccine misinformation and hate speech. It is unconstitutional to punish anyone for that speech, and it's even more ridiculous to punish websites that host that content, but had nothing to do with the creation of it.

Believe it or not, the actual details of the bill are even worse than Hoylman's description of it. The operative clauses are outlandishly bad.

Prohibited activities. No person, by conduct either unlawful In itself or unreasonable under all the circumstances, shall knowingly or recklessly create, maintain or contribute to a condition in New York State that endangers the safety or health of the public through the promotion of content, including through the use of algorithms or other automated systems that prioritize content by a method other than solely by time and date such content was created, the person knows or reasonably should know:

1. Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action;
2. Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action; or
3. Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

This is so dumb that it deserves to be broken down bit by bit. First off, any kind of content can, conceivably "endanger the health and safety of the public." That's so ridiculously broad. I saw an advertisement for McDonalds today on social media. Does that endanger the health and safety of the public? It sure could. Second, the bill says no use of algorithms or otherwise automated systems "other than solely by time and date such content was created" meaning that search is right out. Want the most relevant search result for the medical issues you're having? I'm sorry, sir, that's not allowed in New York, as a result might endanger your health and safety.

But it gets worse. The line that says...

Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action

... is a weird one because clearly someone somewhere thought that this magical incantation might make this constitutional. The "directed to inciting or producing imminent lawless action, and is likely to incite or produce such action" is -- verbatim -- the Brandenburg test for a very, very limited exception to the 1st Amendment. But, do you notice the issue? Such speech is already exempted from the 1st Amendment. Leaving aside how astoundingly little content meets this test (especially the "imminent lawless action" part) this part of the law, at best, seems to argue that "unconstitutional speech is unconstitutional." That's... not helpful.

The second point is even weirder. It more or less tries to mirror the Brandenburg standard, but with a few not-so-subtle changes:

Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action

Which, nice try, but just because you mimicked the "inciting or producing imminent" part doesn't let you get around the fact that discussions of "self-harm" in most cases remains constitutionally protected. So long as the effort is not lawless, then there's a huge 1st Amendment problem here.

But the really problematic part is point 3:

Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

Ooooooooooof. That's bad. First of all, most "false statements of fact" and many "fraudulent medical theories" do in fact remain protected under the 1st Amendment. And, last I checked, New York is still bound by the 1st Amendment. Also, this is dumber than dumb. Remember, we're in the middle of a pandemic and the science is changing rapidly. Lots of things we thought were clear at first turned out to be very different -- don't wear masks / wear masks, for example.

In fact, this prong most closely resembles how China first handled reports of COVID-19. Early on in the pandemic we wrote about how China's laws against medical misinformation very likely helped COVID-19 spread much faster, because the Chinese government silenced Dr. Li Wenliang, one of the first doctors in China who called attention to the new disease. The police showed up to Dr. Li's home and told him he had violated the law by "spreading untruthful information online" and forced him to take down his warnings about COVID-19.

And rather than realize just how problematic that was, Senator Hoylman wants to make it New York's law!

It gets worse. The law, like most laws, has definitions. And the definitions are a mess. It uses an existing NY penal law definition of "recklessly" that requires those attempting to prosecute the law to establish the state of mind of... algorithms? Again, the bill says that if an algorithm "recklessly" creates, maintains, or contributes to such banned information, it can violate the law. But the reckless standard requires a "person" be "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Good luck proving that with an algorithm.

Then we get to the enforcement provision. Incredibly, it makes this much, much worse.

Enforcement. Whenever there shall be a violation of this article, the attorney general, in the name of the people of the state of New York, or a city corporation counsel on behalf of the locality, may bring an action in the Supreme Court or federal district court to enjoin and restrain such violations and to obtain restitution and damages.

Private right of action. Any person, firm, corporation or association that has been damaged as a result of a person's acts or omissions in violation of this article shall be entitled to bring an action for recovery of damages or to enforce this article in the Supreme Court or federal district court.

The government enforcing a speech code is already problematic -- but then enabling this private right of action is just ridiculous. Think of how many wasteful stupid lawsuits would be filed within seconds of this law going into effect by anti-vaxxers and anti-maskers against people online advocating in favor of vaccines and masks and other COVID-preventative techniques?

This law is so blatantly unconstitutional and problematic that it's not even funny. And that's not even getting to the simple fact that Section 230 pre-empts any such state law, as we saw in Texas and Florida. Hoylman, laughably, suggests that he can ignore the pre-emption issue in his press release by saying:

The conscious decision to elevate certain content is a separate, affirmative act from the mere hosting of information and therefore not contemplated by the protections of Section 230 of the Communications Decency Act.

Except that's wrong. 230 specifically protects all moderation decisions and that includes elevating content. That's why Section 230 protects search results. And, as Jeff Kosseff rightly notes the 2nd Circuit (which covers NY) already addressed this exact claim in the Force v. Facebook case (the ridiculous case that attempted to hold Facebook liable for terrorism that impacted the plaintiff, because some unrelated terrorists also used Facebook). There the court said, pretty clearly:

We disagree with plaintiffs' contention that Facebook's use of algorithms renders it a non-publisher. First, we find no basis in the ordinary meaning of "publisher," the other text of Section 230, or decisions interpreting Section 230, for concluding that an interactive computer service is not the "publisher" of third-party information when it uses tools such as algorithms that are designed to match that information with a consumer's interests. Cf., e.g., Roommates.Com, 521 F.3d at 1172 (recognizing that Matchmaker.com website, which "provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs," was immune under Section 230(c)(1) ) (citing Carafano, Inc. , 339 F.3d 1119 ); Carafano , 339 F.3d at 1124–25 ("Matchmaker's decision to structure the information provided by users allows the company to offer additional features, such as ‘matching’ profiles with similar characteristics ..., [and such features] [a]rguably promote[ ] the expressed Congressional policy ‘to promote the continued development of the Internet and other interactive computer services.’ 47 U.S.C. § 230(b)(1)."); Herrick v. Grindr, LLC , 765 F. App'x 586, 591 (2d Cir. 2019) (summary order) ("To the extent that [plaintiff's claims] are premised on Grindr's [user-profile] matching and geolocation features, they are likewise barred ....").

So... the law clearly violates the 1st Amendment, is pre-empted by Section 230, and, if it actually went into practice, would actually be both wildly abused and dangerous.

What's it got going for it?

Well, as Kosseff also points out, if it passed, and somehow the Texas/Florida laws were brought back from the dead, social media websites might get in trouble both for leaving up the same content they could get in trouble for taking down elsewhere. And, at least for those of us who write about content moderation, well, that will be amusing to cover. But, beyond that, this bill is complete garbage. It's the mirror image of the garbage Florida and Texas passed -- equally as dumb, equally as dangerous, and equally as unconstitutional, just at the other end of the spectrum.

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Filed Under: 1st amendment, brad hoylman, content moderation, democrats, florida, misinformation, new york, republicans, section 230, social media, texas


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  • identicon
    Anonymous Coward, 3 Jan 2022 @ 9:39am

    What's it got going for it?

    Well to avoid legal problems, the Internet will be filtered on a city by city basis so as to feed you the misinformation that the local politicians want pushed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jan 2022 @ 9:49am

    A minor nitpick:

    Lots of things we thought were clear at first turned out to be very different -- don't wear masks / wear masks, for example.

    The science never said don't wear masks. Politicians said don't wear masks. (Admittedly some with initially good intentions, like saving N95s for health care workers... but then the health care workers were never given the N95s, so what gives?) This is exactly why letting politicians decide what is and isn't covid misinformation is a lethally stupid idea.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 Jan 2022 @ 1:15am

      Re:

      "Admittedly some with initially good intentions, like saving N95s for health care workers... the health care workers were never given the N95s, so what gives?"

      The initial messaging was there because we'd just seen people stockpiling enough toilet paper to build houses with, so it was a pretty good message to tell people to leave N95s to healthcare workers instead of rioting to try and hoard them privately. Especially since, unless I misremember the timeline, it was unclear at the time if N95 would give any significant advantage compared to other types of face covering and reducing surface spread.

      Actually getting N95s to those workers on a reliable basis required a solid supply chain, no corrupt profiteering and competent leadership, and... well...

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 4 Jan 2022 @ 8:23am

        Re: Re:

        The initial messaging was there because we'd just seen people stockpiling enough toilet paper to build houses with, so it was a pretty good message to tell people to leave N95s to healthcare workers instead of rioting to try and hoard them privately.

        Yes, if that was what they'd said. Instead, Fauci lied to the public and told them masks weren't necessary, in order to convince them not to hoard them so that the healthcare workers could get the limited supply. The lie was in service of a good objective, but I don't think public health officials should be lying in their official capacity, regardless of the motive.

        https://slate.com/technology/2021/07/noble-lies-covid-fauci-cdc-masks.html

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 4 Jan 2022 @ 8:57pm

          Re: Re: Re:

          The problem with lying is that it's never a one and done event, it's something that's going to be hanging over your head for a while.

          Even if you had the absolute best of intentions you've just made clear that you are willing to lie to someone to further your goals which makes it much harder to convince them that you're telling the truth after that and much easier for someone who might be trying to further their own goals to accuse you of lying.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 8 Jan 2022 @ 12:49pm

          Re: Re: Re:

          "Instead, Fauci lied to the public and told them masks weren't necessary"

          Did he lie? There still doesn't seem to be reliable evidence that N95s specifically are necessary. They would have been the ideal, but given that other types of face coverings were recommended and the area I live had way lower infection rates than the places I've seen where people were trying to oppose any type of mask, I don't think he was wrong.

          reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 3 Jan 2022 @ 10:08am

    Here’s the thing, though.

    New York’s Legislature has a better track record when it comes to passing sane legislation. As proof, see our robust Anti-SLAPP statute and the bill to lower prices for ebooks for libraries that Governor Hochul just vetoed (which disappoints me).

    I’m not saying there’s no chance this legislation won’t pass out of both houses but there’s a far lower chance than its mirror legislation passing out of Florida and Texas.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jan 2022 @ 10:44am

    Second, the bill says no use of algorithms or otherwise automated systems "other than solely by time and date such content was created" meaning that search is right out.

    Perhaps more importantly, it directly favors whoever is spamming the most, as they would always have the most recent content.

    I don't know about you, but in my experience people promoting medical mis-information are far more prolific in their communications (or at least, more willing to spam randomly in order to keep at the top of the page) than the CDC is.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jan 2022 @ 11:15am

    They really want me to shut up about Taiwan...

    Includes a false statement of fact ... that is likely to endanger the safety or health of the public.

    If I say "Taiwan is a part of Mainland China", the Chinese government will be happy, but any businessmen who rely upon that are likely to have safety concerns if they repeat my words in the wrong company. Say, Taiwanese separatists.

    If I say "Taiwan is an independent country", you can pretty much guarantee the opposite of everything above, and still people are endangered.

    And which is a false statement of fact?

    In other news, Schrödinger's cat is alive (and dead).

    Also, this statement is false.

    reply to this | link to this | view in chronology ]

    • icon
      Rico R. (profile), 3 Jan 2022 @ 11:38am

      Re: You've found the golden solution!!!

      Apparently, we'll need Schrödinger's cat to start a social media platform. That way, content moderators can have posts both remain up and taken down! It has to be the only way to satisfy the unconstitutional demands in Texas and New York at the same time.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 3 Jan 2022 @ 11:51am

    Until he manages to silence MTG, Rand Paul, & the rest of the Trump faithful in office perhaps he should just fsck off about trying to hold others to standards he can't manage in his organization.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 3 Jan 2022 @ 12:23pm

    This holds true across party lines:

    Few things in our government⁠—at any level⁠—emit the same aura of all-around dumbassery that comes from a “we must be seen doing something” law.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jan 2022 @ 6:02pm

      Re: This holds true across party lines:

      "Few things in our government⁠—at any level⁠—emit the same aura of all-around dumbassery that comes from a “we must be seen doing something” law."

      As the majority of gun control proposals ("assault weapon" bans, magazine size limits) has aptly demonstrated for decades.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 4 Jan 2022 @ 1:15am

        Re: Re: This holds true across party lines:

        "As the majority of gun control proposals ("assault weapon" bans, magazine size limits) has aptly demonstrated for decades."

        Well, what can you do?

        They start off with a sensible proposal - like demanding licensing and/or demands on gun safety education as a prerequisite for owning a gun, rapidly find out that won't fly and eventually end up with a diluted token bill which effectively does nothing.

        And then have to talk fast and make much noise to convince the gullible it's a major win.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Jan 2022 @ 4:44am

          Re: Re: Re: This holds true across party lines:

          In all seriousness size constraints seem to be considered perfectly constitutional. That only could help with concealment of guns more powerful than pistols.

          But requiring all handguns be Desert Eagle or bigger framed wouldn't go over well with anybody even in post 9/11 "we must overreact immediately!" days.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 5 Jan 2022 @ 12:15am

            Re: Re: Re: Re: This holds true across party lines:

            "In all seriousness size constraints seem to be considered perfectly constitutional. That only could help with concealment of guns more powerful than pistols."

            Most constraints implemented don't really serve any sensible purpose other than mitigating the potential harm an assailant already in possession of a firearm and bearing lethal intent can cause easily, yeah.

            The real issue remains twofold; Too big a proportion of people coming to the unspoken realization that in the US, land of opportunity they were literally born to lose...and decide to go down taking as many of the cool crowd, the haves, or just the people not in perceived misery as possible with them.

            And the cult of death so prevalent, where a frightening proportion of americans cling to the belief that the gun - violence - is an effective solution to every problem in the end.

            Piss-poor education, class divides, and a society stuck in a hindmost-be-damned rat race where the gold standard of "winning" is to, at some point, be able to stop spending ten hour work days just to make ends meet. While dreaming all the time about miraculously becoming one of the 1%.

            reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 4 Jan 2022 @ 1:30am

        Re: Re: This holds true across party lines:

        Well, anything more meaningful does seem to lead to cowards trying to stockpile more weapons than they could ever use and talking about how the occasional mass murder is a price worth paying, so I can why there's hesitancy to try anything with teeth.

        Although, even what you listed also has the cowards stockpiling, so I'm not sure what the answer is. I'm just happy not to live in the single country dominated by those cowards.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Jan 2022 @ 2:28pm

    When 'Doing Something' means trampling the first amendment...

    230 may not have been written with the intent to out a bunch of first amendment-hating politicians and people but it sure does the job incredibly well. So very many politicians eager to look like they're Doing Something and play to the gullible that they're willing to make clear just how much they'd love to see the first amendment thrown under the bus as soon as it benefits them.

    reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 4 Jan 2022 @ 1:27am

    Why am I not surprised?

    The thing about rules is that they apply only until the opposite decides to flip the board. After which point if you keep trying to follow the rules you will lose the game your opposite just forced upon you.

    Both in the OP and in that anti-gun bill in California mimicking the Texas anti-abortion bill I see that increasingly democrats are learning to fight as dirty as the republicans.

    Brad Hoylman's law degree implies that his almost cartoonishly horrifying bill may have been formulated with the specific intent to force the courts to bring down a ruling which stops many of the anti-230 proponents dead in the water. Would be nice if that were the case, though assumptions re the competence of US politicians these days is like offering thoughts and prayers to the invisible unicorn allegedly patrolling your backyard.

    I would expect to see a lot more of this type of legislation, with democrats increasingly showing republicans why you should never establish a precedent you don't mind being a victim of.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 4 Jan 2022 @ 7:16am

      democrats are learning to fight as dirty as the republicans

      Good. People who don’t respect the rules won’t be swayed into respecting those rules by people who follow the rules and go tsk-tsk at the rulebreakers. Metaphorically throwing a few elbows in their faces, on the other hand…

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 5 Jan 2022 @ 12:33am

        Re:

        "Good. People who don’t respect the rules won’t be swayed into respecting those rules by people who follow the rules and go tsk-tsk at the rulebreakers."

        Something more of the liberal crowd desperately needs to learn.

        It does the sheep little good to predict the goodness of a diet of grass if the wolves are of a different mind

        • Terry Goodkind, Wizard's First Rule.

        Rules and principles are a gentleman's agreement whereby opposing sides may agree to carry out their conflicts in an arena of debate, using arguments and logic as weapons. That's only possible when both sides believe words actually have meaning.
        And it's become bitingly obvious the republicans have left that conviction behind. Just like personal responsibility and accountability, or consistent beliefs. Bringing to mind what was often said about the original nazis in times past.

        Americans keep forgetting what their own scholars kept reminding them off; That "It can't happen here" was what non-nazi Germans kept saying all the way until Hitler wrote himself the ermächtigungsgesetz*.

        No war has ever been won by refusing to adopt the effective weapons of the enemy or sticking to rules of engagement the adversary doesn't respect.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2022 @ 7:54am

    "false statement of fact" ??

    Isn't a "false statement of fact" ... by definition ... NOT a fact?

    reply to this | link to this | view in chronology ]

  • icon
    Lostinlodos (profile), 8 Jan 2022 @ 12:24pm

    Memo to Dems

    This law would have Dr Fauchi and every web site that hosts his statements in jail.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Jan 2022 @ 12:46pm

      Re: Memo to Dems

      ...and apart from the fact that you can't spell his name correctly, it would be a bad thing if he were to be held in jail for stating factual information. Which is why, in case you didn't notice, everyone apart from the Democratic Senator referenced is opposing this. Weird how things work when you don't pretend politics is a team sport, huh?

      reply to this | link to this | view in chronology ]

      • icon
        Lostinlodos (profile), 8 Jan 2022 @ 1:40pm

        Re: Re: Memo to Dems

        Typo.

        The article itself points out his changing opinions.
        And that’s my point. A clear example of how quickly one of their own, and to many MSM Dem commentators, he’s their god, would fall short of requirements.

        All this messing around is very very bad.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 8 Jan 2022 @ 5:21pm

      Re: Memo to Dems

      .. said nobody capable of rational, independent thought, ever.

      reply to this | link to this | view in chronology ]

      • icon
        Lostinlodos (profile), 8 Jan 2022 @ 6:00pm

        Re: Re: Memo to Dems

        said nobody capable of rational, independent thought, ever

        Are you stating 230 should be changed?
        Which side? Forced hosting or forced removal?

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 8 Jan 2022 @ 6:08pm

        Re: Re: Memo to Dems

        .. said nobody capable of rational, independent thought, ever.

        I disagree. It's hyperbole, but the basic thrust of the argument is correct.

        reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 8 Jan 2022 @ 6:13pm

          Re: Re: Re: Memo to Dems

          His arguments have exclusively been that he's been hopelessly programmed by extremist-right disinformation propaganda, and his replies serve as a reminder he's also illiterate.

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 8 Jan 2022 @ 6:26pm

            Re: Re: Re: Re: Memo to Dems

            Not this time. This time he's saying that this law would, sooner or later, wind up punishing someone doing their best to correctly inform the public about a medical situation. What do you think he got wrong about it?

            reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 8 Jan 2022 @ 6:38pm

              Re: Re: Re: Re: Re: Memo to Dems

              You mean, besides the whole Trump-crafted "Fauci lied" meme?

              reply to this | link to this | view in chronology ]

              • icon
                Lostinlodos (profile), 8 Jan 2022 @ 7:50pm

                Re: Re: Re: Re: Re: Re: Memo to Dems

                Fauci lied

                I wasn’t the one who brought that up.
                all I said was he’d be in violation under the very toying with 230 as is being presented.

                Any little mistake is just as much a violation as intentional misinformation.

                Appears to be very bad law-making to me!

                reply to this | link to this | view in chronology ]


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