December 2nd, 2022

My “Hate Speech” Policy

Prof. Eugene Volokh, challenging the new law. Photo courtesy of Tritton Productions.

Back in June, I wrote about New York’s attempt to force blogs and other social media websites to have a reporting mechanism for “hate speech.”

Since the new law goes into effect December 3rd, and there is a lawsuit challenging its constitutionality, I write again.

First off, I used quotes around “hate speech” because there is no legal definition that comports with the First Amendment. (“I know it when I see it” is not a definition.)

There’s no real definition because it’s impossible to define words that “vilify” or “humiliate” others. But that does’t stop New York from trying:

"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.

Most standup comics would have trouble under this law if they presented their material on a blog without a complaint mechanism — or if you wrote about their material on a blog. Basically, you couldn’t write much of anything about the social commentary from Lenny Bruce, George Carlin or Dave Chappelle.

When I previously discussed this, I wrote:

“Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds.

Most anyone can claim they are humiliated by most anything someone writes about them, unless I guess, the words came off their own keyboard.

Did someone use the wrong pronoun? “How humiliating! Where to do I report this hateful ‘conduct’?”

Interestingly the bill does not say that if a “hate speech” comment is made by someone that it must be reported to any government authority. It simply requires that a website have a reporting mechanism to it, and that it must have a policy in place.

In other words, it’s a fundamentally toothless piece of performative legislation, except for the fact that it compels speech — it compels websites to come up with a reporting mechanism and policy.

Scott Greenfield thinks it doesn’t apply to him, and he may be right. His rationale is that Simple Justice doesn’t exist for “profit-making” purposes. He writes, as I do, whenever he wants, and about whatever he wants, and if you don’t like it you don’t have to read it. There is no fee to read. Go suck an egg. End of story, etc.

But what is the definition of a profit-making blog? The text of the bill doesn’t actually say:

(B)  "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.

If I ran crappy Google ads on this site, the Attorney General could claim it qualifies as a direct revenue source as soon as one person clicked an ad and I made a dime. Would a tip jar on the side bar qualify?

Could a creative Attorney General claim that a law blog is used for indirect profit-making purposes? “Look, Mr. Blogger, every time you write you elevate your profile, and that leads to more business!”

In other words, pretty much the same argument if a lawyer wrote an op-ed, a law review article, gave CLE lectures or made television appearances. It doesn’t take a genius to argue that this is done as an indirect means of making profit, regardless of the attorney’s actual motivation in writing.

Yes, it’s a crappy argument, but would an Attorney General that already championed a bill that violates the First Amendment care?

This is what the law demands of a “profit-making” social media network. Rather than fight over whether I qualify, I prefer to come up with a policy.

First the language:

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.

And now my policy:

Reporting mechanism: My contact information is on my website, and the comments on the blog are currently open.

Policy: It’s my blog and I will accept or reject such comments as I so choose. I do not seek your approval, or that of any governmental official, to make my decisions. I might take action from a complaint, or I might not. I might tell you I took action, or I might not. I answer to no one. That is my policy.

Do you think my policy looks like a great, big middle finger to the New York government? Well, you might not be wrong. But the state doesn’t tell me what my policy must be, only that I must have one. And now I have one.

Currently, Eugene Volokh is refusing to put a policy in place and challenging this idiotic law on First Amendment grounds with the assistance of the Foundation for Individual Rights and Expression (FIRE): LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

FIRE/Volokh point out that merely calling the words on a digital page conduct doesn’t make it so. It is speech:

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment.

Performative legislating sucks, be it from the right or the left.

Update: On February 14, 2023, this law was blocked by a Judge Andrew L. Carter, Jr. (S.D.N.Y.), as violative of the First Amendment. Eugene Volokh has the decision at the Volokh Conspiracy at Reason.

January 12th, 2021

Trump Dumped by Social Media – No Problem

Picture via CNET

It took a number of years, but Twitter finally dumped Donald Trump from its platform. So too for Facebook. Too much hate. Too much violence. The insurrection at the Capitol was the final straw.

There have been many commentators saying that this is a problem. My opinion, dumping Trump and any others that spew hatred and foment violence is most assuredly not a problem.

First, we will dispense with the First Amendment argument. There is none. These are private businesses and the First Amendment restricts what the government can do. The principles involved for me dumping a comment or commenter are no different than Big Tech. Big Tech and Small Tech have the same fundamental issue, albeit at different scale.

If you spew hate, or spam, or simply write crap I don’t like, then poof, you’re gone. My blog, my rules. If you don’t like it don’t come here. Same with Big Tech.

This deplatforming of a President, however, struck a nerve with folks, for no reason other than he is a President, at least for a few more days.

Over at Bloomberg, Joe Nocera claims that this is as problem, in that a few people in charge of Big Tech have too much power:

Do you really want Jack Dorsey, Mark Zuckerberg, Tim Cook and Sundar Pichai deciding which speech is acceptable and which is not on their platforms — platforms that are now indistinguishable from the public space. In addition to the problem of having so much power concentrated in so few hands, they are simply not very good at it. Their rules are vague, change constantly and are ignored often if the user is prominent enough.

He comes around to a solution — destroying Section 230 protections:

I have come around to an idea that the right has been clamoring for — and which Trump tried unsuccessfully to get Congress to approve just weeks ago. Eliminate Section 230 of the Communications Decency Act of 1996. That is the provision that shields social media companies from legal liability for the content they publish — or, for that matter, block.

He then admits that this would merely result in the problematic posters such as Trump being neutered anyway. After all, without 230 protections, the platform could conceivably be liable for the misconduct of posters. Nocera just thinks the neutering is a good thing:

In fact, once the social media companies have to assume legal liability — not just for libel, but for inciting violence and so on — they will quickly change their algorithms to block anything remotely problematic. People would still be able to discuss politics, but they wouldn’t be able to hurl anti-Semitic slurs. Presidents and other officials could announce policies, but they wouldn’t be able to spin wild conspiracies.

This is a terrible idea for reasons that I discussed last month — Section 230 is the lifeblood of interactive communications. Without 230, you would never read a negative review of any restaurant, hotel or widget. Negative reviews would be met with threats of litigation and the platform is not in a position to determine the truth/falsity of the review. And with politics, there are a bazillion shades of gray all wrapped up in contextual statements.

Twitter and Facebook are hardly the only platforms Trump has to speak on. He has the presidential podium, after all, and can speak freely from it.

And even when he is gone from office — and he will be gone — Trump could call up any journalists in the world and have conversations with them. Who would say no? Whether you love him or despise him you’d certainly like to get answers to questions. Recorded, of course.

And those remarks would get rebroadcast by others. On Twitter. On Facebook. And in a million newspapers, magazines, news shows, blogs, bulletin boards, etc. And it would happen almost instantaneously.

The only difference is that Twitter/Facebook would not be primary sources, but secondary.

Prof. Eugene Volokh, raises concerns in a New York Times op-ed. He writes that while there are plenty of places to speak, Twitter and Facebook are matchless:

there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches. The public relies on them as matchless mechanisms for unfiltered communication, including politicians’ communications with their constituents.

But this likewise misses that social media is, in very large part, about rebroadcasting the thoughts and opinions of others. If Trump (or any other dumped commenter) says anything worth repeating, it will be repeated on those platforms. By someone. Whether the ideas are rebroadcast widely would be determined merely by their level of interest. The same as me. And you.

A final thought: No one claims it is easy to moderate these platforms, or any forum with a lot of discussion.

It’s hard to do and virtually impossible to come up with any kind of objective criteria. The words themselves often obscure the context, as we will see in the upcoming impeachment debate over Trump directing people to march on the Capitol.

Want to know why it’s hard? Consider this easy example. In one context, Trump says “March on the Capitol!” to an angry group of armed insurrectionists. In another, Mahatma Gandhi says “March to the salt flats to make salt.” One is an implicit call for violence, implicit because Trump has a long history of advocating violence. The other comes from someone with a long history of advocating peace.

Context matters. And it defies artificial intelligence decisions that merely look at the words. Let Big Tech (and Small Tech) do as they please with respect to dumping/keeping posters. Keep government out of it.

(Full disclosure: I own stock in Twitter, having bought it after Trump was sworn in, figuring that four years of free advertising couldn’t hurt.)

April 16th, 2018

Should the Disruptive CUNY Students Be Punished?

Last week I wrote about a group of students at CUNY Law who decided to disrupt the First Amendment speech of Prof. Josh Blackman. They didn’t like the way he thinks laws and the constitution should be interpreted, so they figured if they could shout him down this would magically change the way laws and the constitution get interpreted.

It didn’t go well for the students, and they’ve been widely widely ridiculed regarding their conduct. And yeah, the talk was to be about free speech, of all things.

But Prof. Eugene Volokh of UCLA Law — also the founder and longtime editor of group law blog The Volokh Conspiracy — has this interesting thought about whether these students should be punished:

The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations.

But the question of punishment is twofold: For even if you think they should be metaphorically spanked, the question remains as to constitutes suitable punishment. A punishment must, after all, fit the crime.

So here’s my two rupees on the subject. The answer to the first question is an easy yes. An organized effort to silence a speaker is a major no-no, not just for any university students, but especially for law students. They should know better.

And the “punishment” should be compulsory participation in CUNY’s Moot Court program, which exists as a competition among students.

For those non-lawyers reading here, the usual moot court format is for a legal problem to be given and a team of students to write a brief. One student might handle an issue of whether the case is properly in this court (jurisdiction) while another might handle the substantive part (i.e. Is it constitutionally protected speech if a person does xyz?).

The Moot Court room at SUNY Buffalo, my alma mater.

But this is the kicker, and the reason it’s such a valuable teaching tool: The students argue the side that they briefed on day one, but the next day must argue the other side. And they do it before a panel of “judges” that are busy firing questions at them as if in an appellate court. It’s the closest, most realistic, experience to an actual courtroom that a student will have in law school.

The requirement of arguing both sides forces the students to look at problems in a more objective light. It may force students to make arguments that run contrary to their own feelings about how a law should be read. It will force students to look at the warts of their own arguments, as almost all arguments have warts someplace.

Without an ability to understand all sides of an issue, it’s impossible for practicing lawyers to give objective advice to their clients — and that is what we get paid to do. This forces the issue to the forefront.

The moot court competition law school was, for me, the single most valuable experience of my academic experience. It did more to turn me from a student into a lawyer than anything else.

Those students that were disruptive — and it is yelling and screaming that are disruptive, not holding signs no matter how inane they may be — clearly have not yet learned enough about the law if they are acting out the way they did. They are not even close to ready for their legal careers and representing people.

While it may be easy to think some other, more traditional, type of punishment should be administered, the question any laws school should ask is, “What will make them better lawyers?”

And ten years later, they will send thank you notes to the administrators that made them do it and the professors that oversaw the program.