ROCHESTER, N.Y. — As the New York state Court of Appeals takes up a case on a state law on the reporting of hateful conduct on social media, what exactly is considered hateful conduct?
The fine line between free speech and hate speech is at issue here.
The courts are weighing this and analyzing the constitutionality behind reporting and enforcing hateful conduct online.
“The fine line between free speech and hate speech is the kind of speech that poses a physical threat,” said director of the Levine Center to End Hate, Monica Gebell, who is also the director and regional co-chair of the Finger Lakes Regional Council for Hate and Bias Prevention Unit of the New York state Division of Human Rights.
“What we’re concerned with is if the speech actually threatens the safety and security of an individual or a community, or, for reasons of identity, background [or] race,” Gebell said. “[It] could be any of those identity markers that we look at it as hate speech.”
The law in question was passed after the 2022 mass shooting at a Tops grocery store in Buffalo that left 10 Black people dead and three others injured.
It requires social media companies to have a way for users to report hateful conduct and provides a specific definition of hateful conduct.
According to the statute, that is: “The use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons based on race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.”
Video of the Tops attack was livestreamed on the websites Twitch and Discord.
“So, the lessons of Buffalo are vast,” Gabell said. “I think social media just provides a way for people to either anonymously or not say whatever they like and spend that kind of hateful energy in the world, but it doesn’t really go anywhere unless there is a direct threat. And that does have to be reported.”
“Our concern here is that it sure looks like this New York law is trying to put a thumb on the scale and saying that we want every site to be a more restricted, more narrow speech environment,” said the director of constitutional studies at the Cato Institute, Thomas Berry.
He takes issue with the reporting policy included in the law.
“By forcing sites to have a reporting requirement for it, First Amendment lawyers call that a chilling effect, which is where people are less likely to engage in that speech because they know it’s being monitored and might be called out,” Berry said.
But Gebell says red flags online or in person should not be ignored.
“If you suspect that there is a hate crime or hate speech unraveling, it’s important to be an upstander and not let these things just go by because you think somebody else will take care of it,” she said. “You must absolutely report hate crimes. That’s something that New York state wants to start making sure we tally, because we want to have the data on who these hate crimes target.”
Gebell says call 911 if you suspect that line has been crossed or you can also report hateful conduct by calling 844-NO-2-HATE.
An opinion on case will be issued by the court at a later date.
