Well-meaning or not, proposed New York social media regulation bill likely unconstitutional

A New York state bill is seeking to target vaccine misinformation and other speech “that is likely to endanger the safety or health of the public” on social media platforms (h/t Techdirt). While not focused on ideological bias, like the laws passed (and currently blocked) in Florida and Texas, the legislation would nonetheless implicate similar First Amendment concerns.

The bill, proposed by New York state Sen. Brad Hoylman (D-Manhattan), would “prohibit[] the knowing and reckless promotion of unlawful or false material” online, specifically targeting content that includes a “false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public,” or advocates for the use of force or self-harm, or is “directed to inciting or producing” that imminent lawless action, and is “likely to produce such action.”

The proposed regulation is a different side of the same unconstitutional coin as those Florida and Texas bills. Unlike both of those laws, which attempted to openly police ideological bias, this bill focuses on content the drafters find to be particularly harmful. However, like both the Texas and Florida laws, this legislation would be unconstitutional for the same reason.

Under Miami Herald v. Tornillo, editorial choices, with respect to lawful content, receive full First Amendment protection. As such, decisions by the platforms to host, delete, comment on or otherwise moderate content should receive that same Tornillo protection.

Further, as Techdirt explains, speech advocating for the use of force, discussing self-harm, containing false statements of fact or promoting fraudulent medical theories is protected under the First Amendment, unless it falls into one of the narrow categories of unprotected speech.

With respect to the incitement provision in the New York bill, the drafters used the language from Brandenburg v. Ohio, a case that established a narrow test for speech that can be prohibited lawfully under the First Amendment if it is (1) “directed to inciting or producing imminent lawless action” and (2) “likely to incite or produce such an action.” In other words, platforms already would not have First Amendment protections for hosting such speech, but including language like this in legislation could lead them to overcorrect and take down a significant amount of protected speech.

The larger point with the New York proposal is that it is precisely the kind of measure that can be expected to proliferate around the country if the Texas and Florida laws are not permanently enjoined.

Texas and Florida are concerned that the platforms are taking down too much content, and doing so for ideological reasons. New York’s law is the flip; the platforms are failing to moderate enough content. But that kind of whipsaw demonstrates why — again with respect to lawful, constitutionally protected speech — editorial choices must be the province of the speaker, not the state.

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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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.