Turns Out, The Hate Speech Defenders Aren’t All That Good At Speaking

I really don’t want to be the guy who bashes people for their points of advocacy, but we all occasionally have to play the bad guy. There’s a great section in Letter From Birmingham Jail where Martin Luther King Jr. writes that he finds it odd that clergy members decide to commit to the “let’s not get involved with earthly affairs” schtick when the earthly affairs happened to be opposing bigotry. I have a feeling he’d share a similar sentiment about the folks trying their darndest to prevent restricting hate speech in order to decrease the likelihood of mass shootings from being good law. From Law and Crime:

The New York Attorney General’s Office on Monday afternoon defended a new online hate speech law passed in the aftermath of the racist mass shooting in Buffalo. Critics of the law, including a bevy of conservative and libertarian websites who sued in federal court to strike it down, say the law violates the First Amendment.

The lead plaintiff in the case is UCLA Law Professor Eugene Volokh, who runs a famous legal blog bearing his name. Also suing are online video sharing website Rumble, and anti-Big Tech startup Locals Technology, Inc. In their complaint, they claim that New York AG Letitia James (D) will enforce the law by trying to “strong-arm online services into censoring protected speech.”

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Yes. The Republicans and Libertarians are fighting the good fight of being able to slur with impunity by emulating Sheev Palpatine:

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And, just as a pre-empt of the people who would accuse me of being a race baiter, if you don’t want to take it from me, just look at the data supporting what happens when “free speech”-focused platforms have their way.

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TWTR @elonmusk Elon Musks' Twitter sees rise in racist tweets, hate speech, report says – Axios https://t.co/L9pjHGHkya #elon #elonmusk #twitter

— Phony Chief Twit 📞 (@elonchieftwit) November 15, 2022

Trans folks have also been suffering the joys of “free speech”:

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tell me again that Elon’s obsession with attacking “the woke mind virus” is not part of an elaborate attack on trans people https://t.co/ZK1w9orskr

— amanda silberling (@asilbwrites) December 17, 2022

The best thing about this is that those in opposition of the law are clearly grabbing at straws.

Arguing for the plaintiffs, Foundation for Individual Rights and Expression attorney Daniel Ortner argued that the the law’s title, its text, the floor debate that preceded its passage and other factors “all clearly suggest there’s more being demanded” than simply a reporting mechanism and that the law’s specifically-required mechanism “violates the First Amendment itself.”

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Really? That’s your best argument? The title of the law violates the First Amendment? And just so we’re being clear here, talking about the “other factors” and saying they all “clearly suggest there’s more being demanded” instead of just, I don’t know, actually pointing to where in the text of the law the First Amendment was violated, is sophomoric. And I don’t mean this in the pejorative sense — I mean it descriptively. As a person who has taught, this is the same type of wobbling and handwaving you generally see when a student wants to make an argument but either a) hasn’t done the reading or b) doesn’t have a clue on what they’re arguing against. What’s next? An allusion to some sloppy metaphor to lean on cliché instead of actually fleshing out your argument?

Ortner said the statute was too confusing, too vague, and over-broad to the point that the definition could include a comedy sketch or other forms of long-protected speech like parody or satire. He said the end result would be that websites, fearing an investigation, would feel compelled to remove certain speech. The law, he continued, was like a “Sword of Damocles” hanging over websites because it’s unclear if a response is required – despite what the AG’s office was arguing in court.

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Ah. Got it. Sword of Damocles. It’s always either that or “History will repeat itself.” Maybe spend less time worrying about metaphorical swords above your head and spend more time actually reading the statute the next time you want to take something to court. Maybe we actually do need strict textualism.

Federal Judge Has First Amendment Concerns About New York State’s Online ‘Hateful Conduct’ Law Targeting Social Media Companies [Law and Crime]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

Topics

Courts, Free Speech, Hate Speech