New York flouts court order by demanding social media platforms censor users over Israel-Hamas war

• New York Attorney General Letitia James demands social media platforms censor content related to the Israel-Hamas war that “may incite violence.”
• The AG’s letter violates the First Amendment and federal court orders blocking enforcement of New York’s Online Hate Speech law.
• FIRE pushes back: “By requiring citizens to police each other’s speech, New York threatens expression protected by the First Amendment.” 

NEW YORK, N.Y., Oct. 19, 2023 — Ten months after the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, she is once more violating the First Amendment by pressuring private companies to act as government proxies for censorship — and violating court orders to do it.

FIRE is calling on the attorney general to retract an Oct. 12 letter she sent to social media platforms, demanding they provide information about what they are doing to “stop the spread of hateful content” related to the Israel-Hamas war and report back to her about their editorial policies and practices.

“Social media sites are not government stooges,” said FIRE attorney Daniel Ortner. “No matter how hot-button the issues, requiring private companies to police speech is illegal, and also blatantly violates the court order secured by our recent lawsuit.” 

In light of the war between Israel and Hamas, the attorney general sent a letter to six platforms, including Rumble, Google, and Meta (Facebook), demanding that they answer a list of questions about their content-moderation policies and practices. James expressed her concern about posts that “may incite violence against Jewish and Muslim people.”

The letter, titled “Removing Calls for Violence” asks platforms how they are addressing alleged “recent calls for violence” and tells them to “describe in detail” everything from their existing content-moderation policies, to their process for identifying and blocking problematic posts and banning their authors. The attorney general’s press release goes further– demanding that platforms “prohibit the spread of violent rhetoric” and “hateful content,” and vowing to “hold social media companies accountable.” The deadline for the platforms to respond to this barrage of intrusive questions is Oct. 20.

But longstanding Supreme Court doctrine says that violent speech is protected unless a speaker intends to cause imminent violence and the speech is likely to cause imminent violence–like when a speaker works a mob into a frenzy and tells them to go burn down a nearby building. When the government tries to root out “hateful” or “violent” speech, it not only violates the First Amendment, but engages in a fool’s errand.

“By requiring citizens to police each other’s speech, New York threatens expression protected by the First Amendment,” said FIRE senior attorney Jay Diaz. “Would a video created by a pro-Israeli activist calling for bombing Gaza qualify as a ‘call for violence’? Is a news report including a quotation from a protestor defending Hamas attacks on the Israeli military equal to inciting violence? The attorney general’s vague letter fails to address these vital questions.”

In sending the letter, the attorney general also did exactly what a federal court told her not to do. Last December, FIRE represented Rumble, Locals, and blogger Eugene Volokh in a lawsuit against James over a New York law that forces websites and apps to address “hateful” online speech. The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment. 

The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create and publish a “mechanism”for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.

FIRE successfully secured a preliminary injunction which forbids the attorney general from enforcing the law — against Rumble or anyone else. Her Oct. 12 letter violates this injunction by pressuring FIRE plaintiff Rumble and others to engage in censorship. FIRE’s response demands that she retract the letter by Oct. 20 or face further legal action.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT: 

Katie Kortepeter, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org