New York state Sen. Andrew Gounardes and Assemblymember Nily Rozic have introduced two pieces of legislation that violate the Constitution and restrict New Yorkers’ ability to freely access the internet. This is despite the courts striking down similar legislation in Arkansas and California in two lawsuits brought by my organization, NetChoice. Instead of upholding the Constitution, Gov, Hochul joined the chorus and endorsed violating the rights of her citizens.
Unfortunately, the casual indifference to protecting the rights of her constituents in favor of political expediency has become routine for Hochul.
Radical idea: if a governor knows an action she is about to take will violate the Constitution and thus her oath of office, she should not take that action. Similarly, if she takes that illegal action anyway, the members of her Legislature and the voters of New York should hold her accountable.
However, blessing unconstitutional laws that try to restrict access to or censor online content is nothing new for Hochul. Just a few weeks ago, for example, a federal court slapped down her so-called “hateful conduct” law that, despite its name, sought to regulate and restrict access to all sorts of constitutionally protected speech online. The Foundation for Individual Rights and Expression and First Amendment expert Eugene Volokh successfully sued to prevent that law from taking effect.
The new unconstitutional bills Hochul is supporting pull directly from legislation that my colleagues at NetChoice and I have successfully sued to block in court. The proposal cites provisions from California’s “Invasion of Children’s Privacy Act,” or what it labels the Age-Appropriate Design Code, which the judge found was “not only unlikely to materially alleviate the harm of insufficient data and privacy protections for children, but actually likely to exacerbate the problem by inducing…children to divulge additional personal information.”
In her attempt to wage a politically motivated war against tech companies, Hochul is willing to pass legislation that violates the privacy rights of children. Explain that one to me.
These bills also bear strong resemblance to the internet restrictions championed by red states like Arkansas. The Arkansas law was designed to prevent minors (and in practice, adults) from seeing a whole host of content that lawmakers found personally objectionable. When we sued Arkansas, the judge swiftly found that the state and its governor had acted well outside their constitutional bounds and that there was “no compelling evidence” that the Act would in practice protect minors online. Even the state’s own expert testified the law wouldn’t protect minors.
In fact, the court noted that if allowed to go into effect, Arkansas’ law “will cause [social media] users to suffer irreparable harm.” The court emphasized that the “[l]oss of First Amendment freedoms, even for minimal periods of time, constitute[s] irreparable injury.”
Sadly, disrespect for the First Amendment and free expression is a bipartisan affair right now. Some Republicans and Democrats believe they know what is best for every American and are willing to disempower parents and digitally disenfranchise us all.
The kicker is that none of the bills in California, Utah, Arkansas, Texas or New York would actually have their intended effect. If the goal is really to protect online privacy, lawmakers can’t accomplish that by mandating every citizen hand over their personally identifiable information to access basic online services. If the goal is to “simply” limit a child’s access to the most objectionable content, increasing platform liability to do so will cause all but the most mundane information to be accessible online, for children and adults alike.
The internet is different from other goods and services that the government routinely attempts to regulate. At its heart, it is a medium for expression and speech. Thus, the government is, because of the First Amendment, very limited from restricting such activity.
For those who want to keep kids safe online or improve online privacy for all users, there needs to be a greater focus on solutions that don’t violate constitutional principles. One such step would be to pass a federally preemptive data privacy bill that protects all Americans equally. Another would be to begin educating young people about digital safety and literacy. Both of these ideas would have immediate positive effects without ever being thrown out in court.
Hochul and her political allies need to make a choice between filling their campaign coffers and fulfilling their sworn duty to uphold the rights of New Yorkers. Pushing unconstitutional legislation from other states is not just wrong, it’s embarrassing, and it raises serious questions about Hochul’s ability to govern New York effectively.
Marchese is the director of litigation for NetChoice, a trade association dedicated to protecting free speech and free enterprise online.
Christopher Marchese
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