Over the weekend, a tragic shooting at a grocery store in Buffalo, New York left 10 dead and 3 wounded. Tensions online inevitably ran high in the aftermath, as evidence emerged suggesting the shooter was motivated by racial animus and partisans in both camps raced to blame their political opponents. (Meanwhile, the FBI’s glaring failure to stop this shooter despite past threats went largely overlooked). Now, New York Governor Kathy Hochul is making waves for her attempt to pin blame on social media companies and her calls to limit free speech in response to the tragedy.
“The CEOs of [social media] companies need to be held accountable and ensure all of us that they’re taking every step humanly possible to monitor this [racist] information,” she said in an interview with ABC News. “How these depraved ideas are fermenting on social media… it’s spreading like a virus now. [There are racist conspiracies] spreading through social media platforms that need to be monitored and shut down the second these words are espoused… it has to stop.”
“We will protect the right to free speech, but there is a limit,” Hochul added. “There is a limit to what you can do, and hate crimes—hate speech—is not protected.”
“We will protect the right to free speech, but there is a limit… hate speech is not protected.”
— Brad Polumbo 🇺🇸⚽️🏳️🌈 (@brad_polumbo) May 16, 2022
Governor Hochul’s comments are disturbing, unfair, and factually false.
First, I should note that we all ought to have a great deal of compassion for the governor and all the people of New York right now. Hochul was literally standing in front of the crime scene during this interview, and said that she felt a personal, emotional connection to the community and the victims. In light of such a great trauma, we ought to give New Yorkers a lot of grace right now, Hochul included.
But because Hochul is the governor of the Empire State, her comments on free speech are still fair game for criticism—and there’s a lot to criticize here.
For one thing, she’s wrong to demonize social media companies for supposedly mishandling the shooting. The streaming platform that the shooter attempted to use to livestream the atrocity, Twitch, shut the livestream down within 2 minutes. For a platform that has an unimaginably large amount of content being posted at any time, that’s an excellent response time. (For context, it took Facebook 17 minutes to remove a 2019 shooter’s livestream, according to ABC.)
What’s more, fringe, conspiracy-inspired madmen like the Buffalo shooter are rarely truly radicalized on mainstream social media platforms like Twitch or Facebook. They go to the corners of the internet where there will always be dark content, rank misinformation, and crazed conspiracy.
In truth, no one deserves blame for this shooter’s actions other than the shooter. Full stop.
(Editor’s Note: I am not including the shooter’s name because our policy at BASEDPolitics is to avoid covering biographical information of mass killers whenever possible, as infamy is often the desired aim of their atrocities.)
Yet the most disturbing part of Hochul’s comments is when she falsely claims that “hate speech” isn’t protected free speech. Objectively speaking, it is indeed protected by the First Amendment.
You don’t have to take my word for it.
Legal scholars from the left-leaning American Civil Liberties Union (ACLU) to the non-partisan Foundation for Individual Rights in Education (FIRE) agree on this point. Even the liberal-leaning Washington Post has repeatedly fact-checked progressive politicians who claim that hate speech isn’t protected by the First Amendment.
“The Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech,” the Post explains. “The high court did so in 1969, when it found that a state law banning public speech that advocates for illegal activities violated the constitutional rights of a Ku Klux Klan leader. It did so again in 1992, when the justices found that a city ordinance prohibiting the display of symbols that arouse anger toward someone based on race, religion and other factors is unconstitutional. And again in 2011, when the court ruled in favor of church members who picketed and carried signs with homophobic slurs at a soldier’s funeral.”
“There is no hate speech exception to the First Amendment,” law professor Eugene Volokh has similarly explained. “Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with ‘hate speech’ in any conventionally used sense of the term.”
So, what Hochul said in her ABC interview is flat-out wrong. And coming from a governor, it’s more than an innocent mistake.
Yes, tensions are high right now, and Governor Kathy Hochul’s emotion is certainly understandable. But if anything, these moments in the aftermath of a crisis are the very time when moral and legal clarity about our constitutional rights is most essential.
(Editor’s note: FIRE was originally identified as “right-leaning” which we have changed to the more accurate description of “non-partisan.” We apologize for any confusion.)