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.

June 8th, 2022

NY’s New Social Media Reporting Law

New York Gov. Kathy Hochul turned a few heads when she said, during a speech regarding new gun safety laws:

“And in the state of New York we are now requiring social media networks to monitor and report hateful conduct on their platforms.”

Say what? Require a social media company to “report” “hateful conduct?”

Report to whom? And what, exactly, is “hateful conduct?”

From the bill jacket, we’ll start with the “definition” of hateful conduct:

Specifically, this legislation defines hateful conduct to mean 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.

Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds. So this is not an auspicious start.

But on reading it I saw that all the law actually required, contrary to what the Governor said, is that there must be an easily accessible mechanism for a user to report the issue to the social media site owner. Which, as far as I know, all of them already have.

There is no mechanism within that new statute for Facebook or Twitter to report to the government, or report to anyone else for that matter.

It also requires the social media company have a policy in place to deal with the situation. But the law does not (and could not on First Amendment grounds) tell the social media network how to handle those complaints.

So the network could have a policy of “Our company deals with these complaints on a case by case basis, and does so totally and unapologetically on whim.” Hey, it’s a policy, isn’t it?

In essence, the law does nothing.

Here’s the Governor’s brief (and erroneous) remarks on the subject:

March 7th, 2017

The Twitter Fail by Trial Lawyers

You may think that there is too much ” advertising or marketing by trial lawyers. And in one sense you are right if you think in terms of subway ads, or worse (ads over urinals or at funeral home web sites).

But you know what? There is one group that does a pretty lousy job of getting its message out, at least insofar as it pertains to Twitter. And that is our trial lawyer associations — those groups of lawyers that have pooled our resources in order to advocate for consumers so that rights are not stripped away.

Despite Twitter being cheap, easy and very effective in getting a message out to the general populace (as should be abundantly obvious now given the recent election), the various trial lawyer associations do a crappy job.

I’ll pick on the American Association for Justice today, of which I am a card-carrying member. With 56,000 members, this is the single most prominent national trial lawyer group in the country that fights for a fair and effective civil justice system.

The group not only lobbies Congress, but has a wide range of sections devoted to different practice areas, and publications to meet most any need. If you represent injured people as part of your practice, there is no doubt you should be a member.

But I am flummoxed by the lack of something so simple – social media outreach to those that aren’t trial lawyers. To “regular people” who very much have a vested interest in the outcome of, say, the attempt to grant immunity to medical practitioners or to knee-cap class action suits.

The AAJ Twitter feed has just 6,000 followers. While a large number of followers isn’t always meaningful, since phony “ghost” followers can be bought, a relatively low number of followers for a large organization is indicative of a failure to adequately utilize the medium.

AAJ’s contribution to the masses via this forum consists of mostly just posting its own stories. There is little engagement with others. No re-tweeting of articles written by others. No responsive public commentary on issues of the day that matter to people likely to be affected.

The AAJ Twitter feed acts, for the most part, as little more than another means of distributing press releases and research reports. But it fails at this.

How do I know it fails? Because few of its tweets have been shared more than 10 times. That is, quite simply, a dreadful track record.

If we are going to put all the time, money and effort into creating research reports — that debunk myths and use empirical data instead of relying on anecdotes — shouldn’t we spend a little time actively promoting those reports and get them out into the public?

The more folks that read them, the more that share them, the more likely it becomes a subject of town hall meetings and additional press. Don’t we want regular folk calling their elected representatives regarding the evisceration of rights?

It takes time to build up relationships with other people, particularly those with a voice likely to rebroadcast messages. The best time to start doing this was a few years ago. The second best time is today.

AAJ should be doing everything it can to encourage, and maximize, the voices of those that are fighting for the same thing — fair access to the courts.

State trial lawyer associations are, for the most part, no better. Every state, to my knowledge, has a trial lawyer association. But few are utilizing a widely used and free platform to get the messages out to those that may lose rights.

Tort “reform” was not part of the election — if it was ever mentioned by Trump or Clinton I missed it.

But with Republicans in charge now of House, Senate and White House, it sure as hell is on the front burner now.

So please, get out there, engage, and be more active in getting the messages out. Today, not tomorrow.

March 25th, 2014

Court: No, You Can’t Have That YouTube Video

Another social media case. This time, instead of the keys to a Facebook account being sought, it is a YouTube video that had been pulled down or hidden. And the video subject matter involves drinking, smoking, shooting a gun and cursing, among other things.

Is this stuff relevant to the lawsuit such that it need be disclosed?

The case of Reid v. Soults starts with tragedy, as 26-year-old Robert Reid falls off an ATV and suffers a traumatic head injury. Off he goes to see the defendant doctors for treatment.

A medical malpractice suit ensues as the young man dies, premised on a delay in treatment for cerebral edema. As with every other medical malpractice case, obviously no claim is made for the injuries suffered before the patient came into contact with the defendants.

In this case, there is a YouTube video called “Rob Reid Raw and Uncut” that was placed online by non-party Thomas Reid, Jr. (brother of Rob). It showed, according to the defendants, “the decedent drinking, smoking, and using guns,” all of which preceded the accident and alleged malpractice. That video was then taken down or made private.

Coming as a shock to absolutely no one, the defendants wanted an authorization for the YouTube account of the non-party, bringing up an interesting issue as to whether such discovery should be entertained.

The plaintiff, of course, countered that the only reason the defendants wanted the video was so that they could besmirch the character of the decedent in the hopes that the jury wouldn’t like him, and therefore ignore issues of malpractice.

In other words, the plaintiff wants the trial to focus on the doctors. The defendants want the trial to focus on the conduct of the decedent before any accident even occurred, and are looking for any hook to make it relevant.

The issue for the court: Could the requested discovery be relevant to the issues of pecuniary loss and life expectancy, which are at issue in a wrongful death case, such that it would then make it discoverable?

Back in 2011 when a lower court told a different plaintiff to cough up all Facebook data for a similar request for social media records, the appellate division (First Department) stopped the practice dead in its tracks and forced the lower court to do an in camera review.

The problem here for the courts is that, with the explosive creation of new potential evidence due to a variety of social media, the courts could be swamped by such requests, and each request could contain mountains of postings, private messages, photographs and videos.

Last year, Judge Joseph Maltese, sitting as a trial judge in Staten Island, warned of the problem of defense fishing expeditions through the lives of plaintiffs and the tsunami of data:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

The appellate court in the Reid matter told the lower court to review the video. And Judge Joan Lefkowitz, who sees many of the medical malpractice cases in Westchester, did just that. And she found it badly wanting in the relevancy department, giving the defendants a big fat no in response to their attempts.

A final note: While the standard here is that the party making the request must show a “factual predicate” to get access to the records, the exceptionally burdensome task that will befall the courts in doing the reviews of what could be, in some cases, mountains of records, means that if such requests are not well-documented, the request should be doomed.

The vast majority of such requests I have sheen so far are simply fishing expeditions. Courts are not going to place themselves in the position of looking for a minnow in an ocean on behalf of the defendants.

Note: On my request, plaintiff’s counsel Anthony Pirrotti, Jr. — a frequent lecturer to other trial lawyers — provided me with some of the background, via one of the briefs.