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.

November 22nd, 2022

NY’s Adult Survivors Act Gets Started

The Adult Survivors Act was signed by Gov. Hochul six months ago, and is modeled on the New York’s Child Victim’s Act. The law’s premise is simple: The statute of limitations on sexual assaults is suspended for a year. Old claims that had been stale are now open. As of Thursday, Thanksgiving Day.

The fundamental logic behind it is straightforward: People (likely to be mostly women) who had been sexually assaulted years ago and afraid to come forward may now do so. The #MeToo movement has given courage to many to do that which they had previously been afraid to do.

It wouldn’t be the first time, nor the last, where people just tried to bury in their minds that bad thing that happened to them. Now they can unbury them.

Some cases will be easier to demonstrate than others. Columbia University last month agreed to pay a $165 million settlement with 147 patients of a former gynecologist Robert A. Hadden. And that settlement followed a $71.5 million deal on 2021 for 79 of other patients. The law wasn’t in effect yet, but it had already been passed.

Perhaps, if enough come forward, a pattern of conduct may be evidence. If, that is, it is admissible.

Such cases may happen with alleged victims of Jeffrey Epstein and Ghislaine Maxwell. Or Donald Trump. Or Andrew Cuomo. Or movie stars. Or corporate titans. Or people you’ve never heard of. Or you.

You. Did I say you? How does one defend against claims that may be decades old? Witnesses, diaries or other documentary evidence may be lost or gone. How does a defendant show that he was in the Bronx at the time the assault was alleged to have happened in Brooklyn? Or that they even knew the person? Where were you on the night of February 28, 1992?

And how does the Estate of John Doe defend against an accusation that John Doe sexually assaulted someone?

Will jurors simply accept the word of one person against the other in a classic “he said / she said” argument?

All of these cases will be traumatic. Few will be easy.

November 15th, 2022

Dolan’s War Against Lawyers

James Dolan, the CEO of the Knicks, Rangers, Madison Square Garden and other venues, hates lawyers. Or, more particularly, he hates lawyers that have the audacity to sue him or his companies.

So he banned them from his venues. Brought a routine trip and fall case against MSG due to a broken step? Banned. Brought a dram shop case because one of its bars over served a patron? Banned. Here’s a sample of those letters, courtesy of Richard Jaffe:

MSG-Letter-to-Attorneys Download

Had season tickets to the Knicks for almost 50 years? Banned. Wait. What? Almost 50 years of loyalty and you get banned?

Attorney Larry Hutcher had sued Dolan’s business, the Madison Square Garden Entertainment, Corp., representing resellers of tickets. Dolan, it seems, didn’t like it that others may make a buck off the resale of tickets and tried to stop the practice. If there were excess profits floating around, he wanted them.

But he didn’t just ban the lawyer, he also banned all 60 lawyers at his firm, most of whom likely have nothing whatsoever to do with the lawsuit. And they were banned from all venues, regardless of whether it was a sporting event or a concert at the Beacon Theatre or Radio City Music Hall.

What does Radio City have to do with a personal injury case at the Garden? Nothing, except one James Dolan, its infamously hypersensitive owner.

So Hutcher sued MSG over the ban, and gained a partial victory this week. While generally an owner can ban whoever the hell they want from their private property — except based on protected classes such as race, religion, sex, etc. But lawyers are not a protected class.

An additional exception to the common law rule that you stop people you don’t like from coming onto your land, however, is NY Civil Rights Law 40-B. An owner can’t prohibit people coming onto the land for public performances of “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses.”

(And no, this post isn’t about the concept of what is a “legitimate” theatre, which is obviously a First Amendment issue.)

What was the rationale for stopping lawyers from coming in? And by the rationale, I mean the excuse that they gave, not the real reason. The excuse was that coming into the venue might somehow be deemed discovery “outside proper litigation discovery channels.” Please stop laughing.

New York State Supreme Court Justice Lyle E. Frank handed a partial victory this week to Hutcher. While MSG/Dolan can’t be forced to sell him a ticket, he can still attend if he has one. And this also doesn’t pertain to sporting events, because even though I would call much of that theater, it isn’t in the definition of excluded venues.

And as to the excuse offered by MSG? Justice Frank succinctly wrote:

“[T]here appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”

So what will happen next? More litigation you can be sure! Because somehow, someway, the Dolan family will likely do whatever it can to keep the resale or gifting of tickets who have had the audacity to sue them, out of their hands.

The decision in Hutcher v. MSG Entertainment is here:

Hutcher-v.-MSG Download

November 9th, 2022

Once Again, It’s a “Toll” not a “Suspension”

When the pandemic hit, everything ground to a halt. And this affected not only lawsuits that stalled due to no juries being picked, but far more importantly, it affected cases that had yet to be brought that had the statute of limitations running. It was hard, for example to acquire records, documents and other evidence when the recipients of the requests weren’t in the office. And it was hard for sure to serve a defendant personally with lawsuit filings to start suit.

So Gov. Andrew Cuomo used his emergency powers to issue a series of executive orders that tolled the statute of limitations for 30 days at a time. Except that every so often they were referred to as a suspension.

And there was a big difference between the words “toll” and “suspension.” For a toll stopped the clock — if you had 150 days left on your statute of limitations for example, it would start to run again when the toll expired. You would still have 150 days, as the the period of the toll is excluded from the calculation of time.

But If it was a suspension, then it merely stopped the statute of limitations from expiring during the course of the suspension. So if the suspension lasted 155 days, you would find that the statute of limitations expired as soon as the suspension ended.

This issue came to a head last year in the Appellate Division, Second Department in Brash v. Richards, which I discussed that the Court found it to be a toll, not a suspension.

Then the Third Department held in Matter of Roach v. Cornell that it was also a toll.

And now the First Department has done likewise, holding last week in Murphy v. Harris that it was also a toll. So, the Appellate Divisions are now 3 for 3 in holding the same way, that this is a toll, and without any dissenting opinions. This makes any potential reversal in the Court of Appeals unlikely.

November 7th, 2022

Why Run the NYC Marathon?

Beer at mile 7 in Brooklyn, after I figured out I probably wasn’t going to win.

OK, I did it again yesterday, running the 26.2 through the streets of NYC.

But the question is why: Why would anyone do that? Hopefully, this brief blog post answers that.

Life is a series of adventures and experiences. You hope for good ones but some will suck.

In the process we do our best, sometimes, to make memories. It was the reason I got sworn in to practice before the United States Supreme Court, despite my expectancy of actually appearing there being someplace barely above nil.

When we are young, we fantasize about experiences to come: Standing on the pitchers mound in the World Series; Soaring toward the hoop in a pro basketball game; And similar for soccer, football, tennis, hockey, the Olympics, and any sport played in an arena with tens of thousands of screaming fans.

Odds are, you will never ever have that fantasy turn into reality. Ever.

Except for one place. There are only a very small handful of major foot races that both attract the best in the word and are also open to the public to compete against them. And the first Sunday in November is the largest one of them all. Not figuratively the biggest, but literally. Same race, same field, same day, same screaming fans.

A million fans — again not figuratively but literally — will line the course and, if you have your name on your shirt, scream for you. Absolute and complete total strangers. Yelling. For you. For you of average athletic ability who trained to run long. You can compete against the best and compare yourself.

Is there any other sport where you can compare yourself to the best in the same event — quantitatively? At the end of the day, you can say you are 50% as good as the best in the world. Or 65%. Or 40%. You know exactly where you stand, for better or worse.

The event is, for those competing for time, a race. But most of the runners, and 100% of the fans, it is the world’s largest piece of urban theatre.

It’s a day when New York City turns in the biggest small town in the world. Strangers chat with strangers. Randos congratulate you on the street afterward. They talk. Not in pixels.

And make no mistake about it, it is an adventure. You don’t really know what will happen. Will it be thrilling or anguishing? Will your mug appear on a bus? Who knows? But if you don’t try to have those experiences, then you certainly never will.

Doing this particular one may be hard, but then, if it was easy everyone would do it.

So go forth and have adventures. If not this, then another. Make it something you can think about in the old folks home years from now. Get out of your comfort zone. Do something new. Because talking about that one viral tweet you had decades ago won’t cut it.