The First Amendment challenge to New York’s platform disclosure law

The First Amendment protects the editorial judgment of publishers. This means, for instance, that the government cannot tell a newspaper it must publish the op-ed of a secretary of state or force newspapers to print a public official’s written reply to criticism in that paper. Newspapers and other publishers of content have the First Amendment right to choose the words that get featured on their pages. And it’s difficult to identify a limiting principle that would permit government regulation of online platforms’ editorial choices without eroding such protections for traditional publishers, which is why courts have extended this protection to the digital sphere, too.

In June 2022, New York Gov. Kathy Hochul (D) signed a platform disclosure mandate that requires “social media networks” — which it defines as “internet platforms that are designed to enable users to share content with other users or to make such content available to the public” — to disclose how they plan to respond to “reports of incidents of hateful conduct.” We’ve raised concerns about the law in this newsletter before. Its definition of social media networks may be so broad as to include websites of news organizations with comment features, and requiring news organizations to promulgate a policy on so-called hateful conduct plainly interferes with their editorial discretion.

A friend-of-the-court brief filed by the Reporters Committee last week pointed out these issues with the law. The brief supports the plaintiffs in a lawsuit filed by, among others, law professor Eugene Volokh, who runs the Volokh Conspiracy, a legal blog with a comments section that Volokh argues might be forced to create a policy on “hateful conduct” if the law is allowed to go into effect. (Volokh’s suit charges that the law violates the constitution and also Section 230 of the Communications Decency Act, which we have also talked about several times in this newsletter.) Volokh’s suit led a federal district court to stop the law from going into effect temporarily, and now the U.S. Court of Appeals for the Second Circuit is reviewing that decision.

The Reporters Committee’s brief explained that “[c]ompelling publishers to disclose or alter their editorial standards … burdens fully protected expression speech twice over: by discouraging the publication of speech that the mandate makes it costlier or riskier to distribute, and by interfering with a news organization’s freedom to articulate its editorial practices on its own terms.” As to both, we argued, the statute poses significant threats to the free press.

We hope that the appeals court agrees to stop the law from taking effect. Stay tuned for updates!

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.