Democrat New York Governor Kathy Hochul took to her podium on Wednesday, May 18, to announce new security measures in the wake of the mass shooting over the weekend. As well as numerous new gun control proposals, the Buffalo native announced the establishment of ”a dedicated domestic terrorism unit within the New York state intelligence center focusing on monitoring social media.” She said:
“We’re going to ensure that we have the best-in-the-nation cybersecurity teams to monitor the places where radicalization occurs. We’re watching you now. We know what you’re up to. And we’ll be coming after you.”
“I’m announcing a referral to the attorney general’s office to investigate the social media platforms that broadcast this horrific attack, that promote and elevate hate speech and legitimize the replacement theory.”
No Place for Free Speech
The Orwellian pronouncement of constant oversight and inspection, plus the criminal referral for protected speech, merit alarm over the future of free speech in New York. Are social media privacy settings to be void in the Empire State? That part of the plan was light on details. Hochul has made it clear she thinks social media companies that allow streaming facilities need to monitor all broadcasts to shut down those showing illegal conduct immediately. However, this appears to be exactly what happened over the weekend. The Buffalo shooter broadcast his crimes on the internet, and although the stream was removed within two minutes of the first gunshot, one of the estimated 22 users who were watching downloaded the video and redistributed it.
On Meet the Press this past Sunday, Hochul asked, “How long was it live-streamed before someone paid attention? These companies make a lot of money. They’re very profitable. And in my judgment, they have the opportunity to be doing far more monitoring and shut things down before it gets to this situation.” Going further, Hochul laid the blame squarely at the feet of the tech companies, saying, “I hold them responsible for not monitoring and alerting law enforcement.”
She also told Chuck Todd that cable news hosts needed to be held “accountable” and that elected officials must not protect free speech:
“And what they need to be doing is calling this out and not coddling this behavior and saying, ‘Well, that’s just young people, and they’re sharing their ideas.’ Yeah, I’ll protect the First Amendment any day of the week. But you don’t protect hate speech. You don’t protect incendiary speech. You’re not allowed to scream ‘fire’ in a crowded theater. There are limitations on speech. And right now, we have seen this run rampant. And as a result, I have ten dead neighbors in this community. And it hurts. And we’re going to do something about it.”
The New York governor has fundamentally misinterpreted how the First Amendment actually works.
Follow the Facts
The government may not restrict free speech unless the words are directed to incite imminent lawless action and are likely to do so. There’s a three-part test the Supreme Court laid out in 1969. First, the speech must incite the audience to lawless action. Further, the action must be imminent. And finally, the call to action must have a high likelihood of success. Discussion of the shooter’s so-called “manifesto” or any theories described within does not come remotely close to satisfying these tests.
Attorney General Letitia James agrees with Hochul. James, another Democrat, tweeted in response to the referral, “This terror attack again revealed the depths and dangers of these platforms that spread and promote hate without consequence.” These two sit at the pinnacle of rights enforcement in the state, yet both seem poised to act in contravention of clearly established fundamental rights to free speech.