How a New York Law Can Help Stop Hate Speech on the Internet

Much of the world now communicates on social media, with nearly a third of the world’s population active on Facebook alone.^[1] However, as The New York Times reported, “Antisemitic and Islamophobic hate speech has surged across the internet since the conflict between Israel and Hamas broke out. The increases have been at far greater levels than what academics and researchers who monitor social media say they have seen before, with millions of often explicitly violent posts on X, Facebook, Instagram and TikTok.”^[2]

As a Washington Post article quoting the ADL showed, since Oct. 7, antisemitic content has increased 900% on X, and there have been more than 1,000 incidents of real-world antisemitic attacks, vandalism and harassment in America.^[3] Memetica, a digital investigations firm, has documented 46,000 uses of the #Hitlerwasright hashtag on X since Oct. 7, up from fewer than 5,000 uses per month.^[4]

Both before and after this recent surge, internet platforms and political leaders have urged steps to address internet hate speech. The measures taken thus far have not proven entirely effective, but now there are new proposals in the New York State Legislature, including the Stop Hiding Hate Act, that would require internet platforms to disclose the steps, if any, that they take to address hate speech. While opponents argue that attempts to regulate internet hate speech run afoul of the First Amendment’s guarantee of free speech, the Stop the Hate Act seems to pass constitutional muster.

The Effect of Internet Hate Speech

Adi Cohen, the chief operating officer of Memetic, stated that the rise in antisemitic posts reflected a convergence of goals by far-right and far-left activists.^[5] “Some of them explicitly say this is an opportunity to gloat and celebrate the killing of Jews online . . . They are trying to lure an audience to their content, and this is a huge growth moment for them.”^[6]

As the popularity of internet platforms has increased, so has the hate speech on those platforms. The ADL recently reported in a survey across all population groups that:

• 33% of survey respondents reported identity-based harassment this year, not a statistically significant change from 35% last year.
• 28% of survey respondents reported race-based harassment, comparable to 25% recorded a year ago.^[7]

Over the last decade, research has shown that social media can increase actual hate crimes.^[8] Researchers have shown that social media can lead to discriminatory attitudes and actual hate crimes against people in marginalized groups.^[9] Cities with a higher incidence of a certain kind of racist tweets reported more actual hate crimes related to race, ethnicity and national origin.^[10] Both online vicarious and individual discrimination were significantly associated with worse psychological well-being among adults of racial/ethnic minorities (e.g., Black Americans, Latinx Americans, Asian Americans).^[11]

Internet Platform Regulation of Hate Speech

Under pressure from the ADL and other groups, internet platforms have voluntarily adopted measures to regulate hate speech. The ADL described some of the measures that have been taken:

Facebook prohibited Holocaust denial content, hired a vice president of civil rights, changed parts of its advertising platform to prohibit various forms of discrimination; expanded policies against content that undermined the legitimacy of the election; and built a team to study and eliminate bias in artificial intelligence. Due to pressure from ADL and other civil rights organizations, Twitter banned linked content, URL links to content outside the platform that promotes violence and hateful conduct. Reddit added its first global hate policy, providing for the removal of subreddits and users that “promote hate based on identity or vulnerability.”^[12]

Despite these efforts, one analysis showed that major social media platforms fail to take down more than 80% of antisemitic posts on their platforms. The Center for Countering Digital Hatred reported that 80% of 700 posts containing “anti-Jewish hatred,” which had collectively been viewed 7.3 million times, were not removed. The research covered Facebook, Instagram, TikTok, Twitter and YouTube. Facebook was said to have failed to act on 89% of posts.^[13]

The Constitutionality of New York State Bills Calling for Transparency

In an attempt to respond to internet hate speech, New York legislators have introduced the Stop Hiding Hate Act, legislation that has passed the New York Senate and is pending in the Assembly. This bill would require large social media companies to disclose their policies and moderation practices for online hate speech. The legislation is modeled after a similar law in effect in California.

The Stop Hiding Hate Act presents difficult issues relating to the First Amendment. For reasons set out below, we believe that the act does not violate First Amendment principles as set out in the preponderance of case law. Legislation that establishes disclosure standards rather than content-based regulation generally survives First Amendment standards.

As set out above, internet platforms have adopted a variety of different measures to address the hate speech problem. Their approaches are divergent and often not transparent. Their sufficiency and effectiveness cannot be gauged by the public or by platform users in the absence of transparency-enhancing measures such as the Stop Hiding Hate Act.

As set out more fully below, disclosure regulations are not generally considered content-based and will likely survive First Amendment scrutiny. In a recent decision, discussed more fully below, the Eleventh Circuit has upheld the constitutionality of disclosure requirements directed at internet platforms.[14] And while it took a different approach to most forms of internet platform regulation, the Fifth Circuit also upheld the constitutionality of disclosure standards.[15] The issue may be headed to the U.S. Supreme Court in that certiorari could be granted in one or both of the NetChoice cases. In that event, regardless of the outcome regarding other components of the laws at issue in the NetChoice cases, we are confident that the disclosure requirements at issue should survive First Amendment scrutiny.

It is settled that hate speech receives First Amendment protection.[16] And the Supreme Court has held that entities arguably analogous to internet platforms receive First Amendment protection. In Smith v. California, for example, the court said that booksellers could not be strictly liable for obscene content in books they sell, because cautious booksellers would over-enforce, removing both legal and illegal books from the shelves. The resulting “censorship affecting the whole public” would be “hardly less virulent for being privately administered.”[17]

However, legislation like the Stop Hiding Hate Act would likely survive First Amendment scrutiny. The Stop Hiding Hate Act is not content-based but merely requires disclosure. The Supreme Court has opined that there are “material differences between disclosure requirements and outright prohibitions on speech.”[18]

A disclosure requirement like the Stop Hiding Hate Act does not prevent speech; it requires only that regulated parties “provide somewhat more information than they might otherwise be inclined to present.”[19] Thus, Zauderer has been applied to uphold disclosure requirements against First Amendment challenges in a variety of contexts.[20]

And apart from the Zauderer line of cases, in the election context, where First Amendment projections are at the highest level, disclosure requirements have been upheld against First Amendment attack.[21]

Against this backdrop the courts have recently considered disclosure requirements analogous to the Stop Hiding Hate Act imposed on internet platforms and in two recent decisions have upheld those requirements.[22] As the NetChoice court wrote:

“The State’s interest here is in ensuring that users – consumers who engage in commercial transactions with platforms by providing them with a user and data for advertising in exchange for access to a forum – are fully informed about the terms of that transaction and aren’t misled about platforms’ content-moderation policies . . . So, these provisions aren’t substantially likely to be unconstitutional.”

The Fifth Circuit decided a similar case. While the court applied a dramatically different analysis from the Eleventh Circuit with respect to much of the statute in question, its analysis of the disclosure requirements of the statute was similar to that of the Eleventh Circuit. The Fifth Circuit held that the disclosure requirement in question “easily passes muster under Zauderer.”[23] The court further explained:

“Here, the Platforms do not explain how the one-and-done disclosure requirements – or even the prospect of litigation to enforce those requirements – could or would burden the Platforms’ protected speech . . .

*              *              *

. . . the Platforms have not explained how tracking the other purportedly more difficult statistics would unduly burden their protected speech, as opposed to imposing technical, economic, or operational burdens. So the Platforms are not entitled to facial pre-enforcement relief.”

Conclusion

The rise of internet hate speech sets up a potential clash between our country’s cherished values of free speech and the need to address the hate speech that has such a corrosive effect on our society. The legislation enacted in California and proposed as the Stop Hiding Hate Act in New York would require internet platforms to disclose the measures they take to address hate speech. Under existing precedent, the Stop Hating Hate Act is fully consistent with First Amendment principles.

Vince Chang is co-chair of the NYSBA Task Force on Combating Antisemitism and Anti-Asian Hate and a partner at Wollmuth Maher & Deutsch. He is immediate past president of the New York County Lawyers Association, past president of the Asian American Bar Association of New York, member of the NYSBA Task Force on Advancing Diversity, co-chair of the New York Fellows of the American Bar Foundation, and member of the ABA Standing Committee on the Federal Judiciary.

[1] Zachary Laub, Hate Speech on Social Media: Global Comparisons, Council on Foreign Relations, June 7, 2019, https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons.

[2] Sheera Frenkel and Steven Lee Myers, Antisemitic and Anti-Muslim Hate Speech Surges Across the Internet, N.Y. Times, Nov. 15, 2023, https://www.nytimes.com/2023/11/15/technology/hate-speech-israel-gaza-internet.html.

[3] Id.

[4] Elizabeth Dwoskin, Taylor Lorenz, Naomi Nix and Joseph Menn, X, Israel-Gaza War Have Supercharged Antisemitism Online, Wash. Post, Nov. 19, 2023, https://www.washingtonpost.com/technology/2023/11/19/antisemiticism-internet-elon-musk-israel-war.

[5] Frenkel and Myers, supra note 2.

[6] Id.

[7] Online Hate and Harassment: The American Experience 2021, ADL, 2021, https://www.adl.org/resources/report/online-hate-and-harassment-american-experience-2021.

[8] In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes, U.S. Commission on Civil Rights, Nov. 13, 2019, https://www.usccr.gov/files/pubs/2019/11-13-In-the-Name-of-Hate.pdf.

[9] Theresa Davidson and Lee Farquhar, Prejudice and Social Media: Attitudes Towards Illegal Immigrants, Refugees, and Transgender People, in D. Nicole Farris, D’Lane Compton, and Andrea Herrera, (eds.), Gender, Sexuality and Race in the Digital Age, Springer 2020. See also Nan Yu, Shuya Pan, Chia-chen Yang, Jiun-Yi Tsai, Exploring the Role of Media Sources on COVID-19 Related Discrimination Experiences and Concerns Among Asian People in the United States: Cross-Sectional Survey Study, J. Med. Internet Res., Nov. 2020, https://www.jmir.org/2020/11/e21684/PDF.

[10] Hate Speech on Twitter Predicts Frequency of Real-Life Hate Crimes, New York University News, Jun. 24, 2019, https://www.nyu.edu/about/news-publications/news/2019/june/hate-speech-on-twitter-predicts-frequency-of-real-life-hate-crim.html.

[11] Alyan Yang et al., The Impacts of Social Media Use and Online Racial Discrimination on Asian American Mental Health: Cross-sectional Survey in the United States During COVID-19, JMIR Form Res., Sep. 19, 2022, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9488547/.

[12] Online Hate and Harassment, supra note 7.

[13] Anti-Semitic Social Posts ‘Not Taken Down’ in 80% of Cases, BBC, Aug. 2, 2021,  https://www.bbc.com/news/technology-58058428.

[14] NetChoice, LLC v. Attorney Gen., 34 F.4th 1196 (11th Cir. 2022).

[15] NetChoice v. Paxton, 27 F.4th 1119 (5th Cir. 2022).

[16] See Matal v. Tam, 137 S. Ct. 1744 (2017) (“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”).

[17] 361 U.S. 147, 154 (1959).

[18] Zauderer v. Office of Disc. Counsel, 471 U.S. 626, 650 (1985). Cf. Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 116 (1991) (“[t]he First Amendment presumptively places this sort of discrimination [content-based burden on speech] beyond the power of the government”).

[19] Zauderer, 471 U.S. at 650.

[20] E.g., CTIA-The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 850–52 (9th Cir. 2019) (disclosure of radiation levels). Accord Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 248–53 (2010) (applying Zauderer and upholding against First Amendment attack disclosures required of debt relief agencies because such disclosures entail only an accurate statement identifying the advertiser’s legal status and the character of the assistance provided, and they do not prevent debt relief agencies like Milavetz from conveying any additional information). See generally Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456(1978) (identifying “numerous examples could be cited of communications that are regulated without offending the First Amendment,” including “the exchange of information about securities, and “corporate proxy statements”) (internal citations omitted).

[21] McConnell v. FEC, 540 U.S, 93, 197 (2003) (upholding disclosure requirements because they further the state interests of “providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering” laws).

[22] See NetChoice, LLC v. Attorney Gen.34 F.4th 1196 (11th Cir. 2022).

[23] NetChoice v. Paxton, 27 F.4th 1119 (5th Cir. 2022).