New York’s Stop Hiding Hate Act, which was signed into law last year and goes into effect this year, is an example of a law whose title makes it seem like something no reasonable person could oppose. Just as the use of titles like the Patriot Act implies that anyone who opposes the bill isn't a patriot, or that opposition to the Affordable Care Act signals hostility towards affordable care. In reality, these feel-good titles are used to obscure an assault on liberty. In the case of the Stop Hiding Hate Act, the law requires social media companies to file intrusive “terms of service” reports with the New York Attorney General.
These reports must disclose whether the company’s terms of service define terms such as hate speech, racism, extremism, harassment, and foreign political interference. The companies must also submit these definitions to the Attorney General. The companies must also report how many times they have addressed violations of their terms of services, the nature of the violations, and the actions taken by the company to address them. Any social media company that fails to comply will be subject to fines as high as $15,000 per day. This legislation is an attempt by the New York State government to shame tech companies into increasing their enforcement of terms of service as it relates to discussions of certain topics, words, and phrases.
This type of government intrusion into the content policies of private media companies violates the First Amendment. The First Amendment prohibits government from interfering in the way media companies regulate their users’ speech. Fortunately, Elon Musk’s Twitter/X is suing New York over the law.
It is not surprising that this law comes from a solid blue state like New York, where Senate Majority Leader Chuck Schumer—champion of gun control, big spending, and high taxes—is considered a centrist. Most progressives have long since abandoned their iron-clad commitment to free speech in order to “stop the spread of hate and extremism.” What is surprising is that many on the populist right have also endorsed government regulation of social media in order to stop companies from “deplatforming” conservatives.
For example, Peter Van Buren (who is a fine writer with many insightful observations regarding American politics and foreign policy), writing in The American Conservative regarding the New York law, criticizes statements by an attorney for Twitter on a 2018 case attempting to hold social media platforms liable for removing certain posts. In response to a judge’s question as to whether the First Amendment gives Twitter the right to remove users “because it doesn’t like the fact that the person is a woman? Or gay?” the attorney replied that “free speech rights only cover the government’s actions.” Well, yes, the First Amendment, which begins with the words, “Congress shall make no law,” only applies to government. Van Buren and other critics of big tech argue that the First Amendment should apply to private tech companies since the drafters of the Bill of Rights could not have “envisioned a day when technology and global corporations would overshadow the power of governments to control information.”
If Van Buren were correct about big tech's power, then Meta (parent company of Facebook, Instagram, and WhatsApp ) and Alphabet (parent company of Google and YouTube) would not have to change some of the features on their platforms to compete with sites like that are more appealing to young people. Van Buren uses the attempt to suppress the Hunter Biden “laptop from hell” story as an example of big tech censorship. What Mr. Van Buren fails to mention is that, thanks to the Streisand effect, the attempt to suppress the story increased interest in Hunter Biden’s business dealings. Van Buren also does not mention the role federal law enforcement and intelligence agencies played in “convincing” social media companies that the story was Russian disinformation. Government officials also pressured social media companies to remove posts challenging the government’s claims about the effectiveness of masks, lockdowns, and vaccines in stopping the spread of COVID-19.
Van Buren is right that “the answer to bad speech is simply more speech.” However, he is mistaken in thinking that giving politicians and bureaucrats more power over social media will increase the free flow of information —especially with respect to information challenging the political class’s “official” narrative. The way to ensure the internet fulfills its potential to become the ultimate free speech zone is to separate tech and state.
