By Charles C. W. Cooke
Sunday, December 04, 2022
On Monday, the State of New York will debut a new
statute — the Social Media Hate Speech Accountability Act — which, impressively
enough, manages to violate the First Amendment in two discrete ways. As Eugene
Volokh notes in the Journal, New York’s law requires any website that features comments to
contrive a policy for dealing with material that might “‘vilify, humiliate, or
incite violence against a group’ based on ‘race, color, religion, ethnicity,
national origin, disability, sex, sexual orientation, gender identity or gender
expression,’” and demands that its owner must “give readers a way to complain
about” it if they see it. This is doubly illegal. Not only is there no such
thing as “hate speech” under American law — and thereby no categorical basis
for the government of New York to demand anything of those who supposedly host
it. But, by insisting that website owners publish explanations of their
moderation rules and promise to respond to cavilers, the state is engaging in
compelled speech.
The response to this from any self-respecting American
must be no less than, “Oh yeah — how about you shove it?” What the private
owners of social networks, blogs, message boards, and so forth choose to do
with their users’ content is up to them, not to the State of New York — or any
other government, for that matter. At the bleeding edges of the First
Amendment, there exist a handful of exceptions to the right to free speech:
incitement to imminent illegal action, defamation, and true threats, for
example. But the United States already has rules governing those oddities, and
the operators of community-driven websites are already obliged to follow them.
As a matter of taste, it may well behoove America’s online moderators to frown
upon comments that “vilify” or “humiliate” others, to disdain users who
disparage their fellow citizens based on their “race, color, religion,
ethnicity, national origin, disability, sex, sexual orientation, gender
identity or gender expression,” and to build mechanisms via which customers can
flag abuse. But they don’t have to.
On the contrary: If they so wish, America’s website
managers — including those who live and work in New York — may exclusively feature so-called
“hate speech.” Line by line, they may run through their user-driven
contributions and remove anything that is kind, nuanced, thoughtful, or
inclusive, while leaving the grotesqueries wholly unmolested. Do I sound happy
about that? I certainly hope I do. Why? Well, because “hate”
resides fully in the eye of the beholder, and, as a result, it is easily
co-opted by politicians. Some people think that atheists are “hateful”; others
think that religious people are. Some people think that to insist that men
cannot become women is to engage in “vilification”; others think that to
pretend otherwise is to deny and “erase” genuine womanhood. We now live in a
country in which the news of every evil act is followed by a public search for
the figures whose speech allegedly caused it. There is simply no way
that the government can referee these altercations without taking sides, and
the whole point of the First Amendment is to prevent the government from taking
sides.
A few years ago, a British friend of mine moved to Nevada
for work and, before long, began to complain bitterly about some of the
peculiar messages — about aliens, strippers, Jesus, etc. — that she saw on the
billboards along the freeway. Then, as now, my reaction was the same: I love those
billboards, even when I abhor their content, because their mere existence
reminds me that I’m free. I do not find it especially charming when I see an
online debate in which one person says, “Enjoy your fake Sky God, you
Neanderthal,” and the other says, “You’re gonna burn forever in Hell.” But the
alternative is far, far worse. By design, the internet is decentralized and
tough to superintend, and its users are encouraged to take advantage of the
infinite space it provides to build fiefdoms of their own imagination and to
express themselves without the permission or the blessing of the police. New
York’s law takes square aim at that design.
In any other context, the unseemliness of these
incursions would be self-evident. If, in an ostensible attempt to make the
world kinder and less dangerous, New York announced that it expected all
bartenders in the state to monitor “hateful speech” within their premises, or
demanded that their owners must set up a customer complaint line for the use of
offended drinkers, Americans would immediately grasp the trouble. They should
here, too.
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