New York Goes After X on Free Speech

July 15, 2025

Tags: 1A, First Amendment, Free Speech, Musk, Twitter
Posted in: Democracy, Post-Constitution America

Can someone please tell New York things have changed? New York city and state are stuck in the Biden era or earlier, repeating themselves in hopes something might change. They are still stuck in BLM-catch-and-release policing and surprised crime is not falling, and still have people hoping defunding the cops might somehow be a way to make the streets safer. Meanwhile, they just elected Zohran Mamdani, a wacky radical socialist, as their Democratic candidate for city mayor, a guy who makes AOC look like she could be an editor for The American Conservative. But the most ancient policy move of recent memory is a new law to force social media censorship on a state-wide level to cut off conservative content. X, only recently freed from the confines of being Twitter, is right in their crosshairs. The good news is Elon Musk and X are fighting back.

The New York law, S895B, would create “terms of service reports” in which social media companies would disclose to Attorney General Letitia James (of Trump lawfare prosecution fame) whether their terms define hate speech, racism, extremism, misinformation, harassment, and foreign political interference. The companies would then include those definitions in a report. The report would also require companies to disclose a “detailed description” of their “content moderation practices” regarding these categories and provide metrics and data as to the number of content, groups, and users flagged for violation, number of actions taken, and types of enforcement actions. Failing to submit the report could engender a $15,000 per day fine. NY Governor Kathy Hochul signed the law in December 2024, and it is set to go into effect this year.

New York is years too late in trying to censor social media under the guise of “hate speech.” In 2022, Donald Trump said at a rally in support of GOP midterm congressional candidates “Another one of our highest priorities under a Republican Congress will be to stop left-wing censorship and to restore free speech in America, which we do not have.” There were at that time already 100 bills in state legislatures aimed at regulating social media content moderation policies. What is truly shameful is how progressive voices relished the power to censor because the most popular platforms followed their wishes but could not see how quickly things could change and the censor’s aim be redirected at them. In a little-known 2018 case, a lawyer for Twitter even told a judge the company had the right to censor protected groups. “Does Twitter have the right to take somebody off its platform if it does so because it doesn’t like the fact that the person is a woman? Or gay?” a judge asked a lawyer for the company. “The First Amendment would give Twitter the right,” the lawyer replied. The thinking at the time, and still alive today though less acted upon, is our 1A free speech rights only cover the government’s actions, not private enterprises like social media.

Things hit a low point in 2020 when Twitter and Facebook became the censors the Founders feared when they wrote the First Amendment. In the 18th century, none of those forward-thinking men could have envisioned a day when technology and global corporations would overshadow the power of governments to control information. The social media giants at that time tried to disappear a story from the New York Post claiming Hunter Biden had sold a Ukrainian company access to his father Joe. The censorship was so complete other writers were afraid to even include a link to the story, for fear their article too would be made to disappear. You could not tweet a link to the Post’s story or send it as a direct message on Twitter and you couldn’t post it on Facebook without some sort of red flag. If you were an unimportant person your message would just be blocked. If you were important, like a conservative journalist trying to report out the fuller story, your account would be locked. The NY Post, one of the largest mass circulation dailies, could not RT its own article. It was high times for the woke and their newly-discovered ability to silence opposing views, 1A be damned. The left pretended a corporation with the reach to influence elections was just another company that sells stuff.

Online free speech may not have been saved entirely by Elon Musk, but he came pretty close when he bought Twitter and renamed it X. Alongside the new name came a rebirth of free speech. Writers and pundits who had been blackballed from Twitter (including me) were reinstated. Once again a diverse range of viewpoints was allowed. “Hate speech” was not used as an excuse to silence legitimate political expression. Things were looking up until just recently, when New York sought to bring back the bad old days with its new law.

But this time Elon Musk is fighting back. X sued New York to challenge the state law requiring social media companies to submit semi-annual reports about how they are suppressing certain kinds of speech. X claims provisions in the “Stop Hiding Hate Act” violate the First Amendment and threaten free speech. X challenged the broader constitutionality of the “Content Category Report” portion of the law, arguing it forces companies to disclose “highly sensitive and controversial speech” protected under the Constitution, and noted content moderation “engenders considerable debate among reasonable people about where to draw the correct proverbial line,” and “this is not a role the government may play,” saying the law’s “attempt to tilt the marketplace of ideas” by harnessing public pressure to achieve its goals is impermissible since the government “cannot do indirectly what [it] is barred from doing directly,” citing National Rifle Association of America v. Vullo. “The state is impermissibly trying to generate public controversy about content moderation in a way that will pressure social media companies, such as X Corp., to restrict, limit, disfavor or censor certain constitutionally protected content on X that the state dislikes,” says the suit.

There is a good chance X will prevail. The “Content Category Report” provisions of the New York “Stop Hiding Hate Act” are almost identical to a California law (Assembly Bill No. 587) that presidential-wannbe Gavin Newsom signed in 2022, requiring social media companies to submit similar reports to the California attorney general. X challenged that law on the same grounds of unconstitutionality, and a U.S. court of appeals ruled in their favor. Also in 2022, Texas won at the circuit level with a similar case, making it illegal for social media to censor, delete, or otherwise interfere with viewpoints, what is known as content discrimination. The answer to “bad” speech is simply more speech to air opposing viewpoints. Elon Musk knows this. New York does not. Yet.

Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.