Legislature: Democratic-controlled (Democrats hold supermajority in both Assembly and Senate)
Governor: Kathy Hochul (Democratic)
Attorney General: Letitia James (Democratic)
Summary:
As one of the largest and most Democratic states in the US, the New York State Assembly and Senate are among the most active legislatures in the nation. Over the past session, they have considered more than two dozen bills relating to free speech issues, including bills limiting so-called hate speech, the role of artificial intelligence in media production, social media use by minors, and speech relating to employees and college students.
The Senate recently passed SB 9450/AB 10103 which requires the owner, licensee or operator of a generative artificial intelligence system to conspicuously display a warning on the system’s user interface that is “reasonably calculated to consistently apprise the user that the outputs of the generative artificial intelligence system may be inaccurate and/or inappropriate.”
Both chambers passed SB 895/AB 6789, which would require social media companies to post their terms of service “in a manner reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service,” and requires social media companies to submit to the attorney general certain terms of service reports.
Recently signed into law was SB 4982/AB 6604, which protects employee freedom of speech and conscience by prohibiting employers from coercing employees into attending or participating in “captive audience meetings” sponsored by the employer concerning the employer’s views on political or religious matters.
Governor Kathy Hochul also recently signed the Stop Addictive Feeds Exploitation (SAFE) For Kids Act, which prohibits social media companies from providing children under 18 with “addictive feeds” absent parental consent and requires social media companies to use commercially reasonable methods to determine user age. Another recent law that also passed unanimously and was signed into law was S 9678/A 10402, which requires certain notice and disclosures when AI-generated media is used in political communications.
Key Policymakers:
Legislative Activity:
SB 1583: Creation of Internet Media Freedom Task Force. This bill establishes the internet media freedom task force to study the practices and policies of social media companies that allow the posting of third-party content by users, as well as other issues relating to dissemination of such content, including but not limited to, forms of censorship employed by social media companies. It would create a legislative task force on internet media freedom, define its composition, and directs this task force to study and report on the potential implementation of legislation, rules, and regulations, at both a state and federal level, with respect to preserving free access to internet platforms for all points of view. Introduced by Republican Senators Robert Ortt (Minority Leader) and Peter Oberacker at the beginning of 2023 and 2024, It has not progressed since committee referral.
A1862/SB 3275: Expansion of Human Rights and Hate Crimes Statute to Cover Anti-Semtism. In early January 2024, Democratic Assembly members Charles Levine and Rebecca Seawright introduced a pair of bills to add provisions on anti-Semitism in the human rights law and hate crimes statute. A group of 10 Republican Senators introduced the same bill on the Senate side. Interestingly, Senator Peter Oberacker, who cosponsored the above bill to establish an internet freedom task force, was among the co-sponsors of this hate speech bill. An identical version of the bill was introduced in 2019 and 2021 by Senator Joseph Griffo. These bills would significantly expand the scope of the human rights law and hate crimes statute to cover a range of expressions deemed anti-semitic.
A7865A/ SB 4511 (Signed into Law) (2022): Requires social media networks with NY users including webpages with comment sections, to provide and maintain mechanisms for reporting hateful conduct on their platform, including a “hateful conduct policy.” Introduced by Asm. Patricia Fahy [D] and Sen. Anna Kaplan [D] in May 2021, passed the Assembly and Senate largely along partisan lines and signed into law on June 6, 2022. Overturned by district court in Volokh v. James.
SB 9542: Prohibits the publication of a digital or physical newspaper, magazine, or periodical which was wholly or partially produced or edited through the use of artificial intelligence without significant human oversight. Introduced by Sen. James Skoufis [D] in May 2024.
AB 9181: The “Swift Act” requiring social media platforms to promptly remove unlawful publications of intimate images, including those created by digitization or generative artificial intelligence; increasing criminal penalties for unlawful dissemination or publication of intimate images created by digitization and of sexually explicit depictions of an individual. Introduced by Asm. Jacob Blumencranz [R] in Feb. 2024 and is currently in committee.
SB 6859/ AB 216: Requires advertisements to disclose the use of a synthetic performer, defined as a “digitally created asset created, reproduced, or modified by computer using generative artificial intelligence or a software algorithm, that is intended to create the impression that the asset is a natural performer who is not recognizable as any identifiable natural performer”; imposes a $1,000 civil penalty for a first violation and a $5,000 penalty for any subsequent violation. Introduced by Sen. Michael Gianaris [D] and Asm. Linda Rosenthal [D] in May 2023 and is currently in committee.
SB 6638/ AB 7106: The “political artificial intelligence disclaimer (PAID) act”; requires political communications that use synthetic media to disclose that they were created with the assistance of artificial intelligence; requires committees that use synthetic media to maintain records of such usage. Introduced by Sen. Kevin Parker [D] and Asm. Alex Bores [D] in May 2023 and is currently in committee.
SB 9450/ AB 10103: Requires the owner, licensee or operator of a generative artificial intelligence system to conspicuously display a warning on the system’s user interface that is reasonably calculated to consistently apprise the user that the outputs of the generative artificial intelligence system may be inaccurate and/or inappropriate. Introduced by Sen. Kristen Gonzalez [D] and Asm. Clyde Vanel [D] in May 2024, and passed the Senate and the Assembly Ways And Means Committee unanimously in June 2024.
SB 895/ AB 6789: Requires social media companies to post terms of service for each social media platform owned or operated by the company in a manner reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service; requires social media companies to submit to the attorney general certain terms of service reports; provides remedies for violations. Introduced by Sen. Brad Hoylman-Sigal [D] and Asm. Grace Lee [D] in May 2023 and passed both chambers largely along partisan lines in June 2024. Currently awaiting action from the governor.
AB 2309: A bill requiring the regents to adopt a policy that ensures all students enrolled at state university of New York and city university of New York institutions are able to express themselves freely without fear of intimidation or harm. Introduced by Asm. William Barclay [R] and Asm. Alec Brook-Krasny [D] in Jan. 2024 but has not progressed.
SB 4982/ AB 6604 (Signed into Law): Protects employee freedom of speech and conscience by prohibiting employers from coercing employees into attending or participating in “captive audience meetings” sponsored by the employer concerning the employer’s views on political or religious matters. Introduced by Sen. Jessica Ramos [D] and Asm. Karines Reyes [D] in Feb. 2023, passed both chambers with large bipartisan majorities and signed into law on Sept. 6, 2023.
SB 7694/ AB 8148 (Signed into Law): Establishes the Stop Addictive Feeds Exploitation (SAFE) For Kids Act prohibiting the provision of addictive feeds to minors by addictive social media platforms; establishes remedies and penalties. It prohibits social media companies from providing children under 18 with addictive feeds absent parental consent. It would still permit minors to view non-addictive feeds and any content available on a social media platform, such as feeds listed in chronological order, and does not limit social media companies’ ability to moderate in good faith to protect children from harmful or otherwise objectionable content. To limit access to addictive feeds, this act will require social media companies to use commercially reasonable methods to determine user age. Introduced by Sen. Andrew Gounardes [D] and Asm. Nily Rozic [D] in Oct. 2023, passed both chambers nearly unanimously, and signed into law on June 20, 2024.
S 9678/ A 10402 (Signed into Law): Relates to the Election Law and materially deceptive media in political communications, provides that a person, firm, association, corporation, campaign, committee, or organization that distributes or publishes any political communication that was produced by or includes materially deceptive media and has actual knowledge that it is deceptive shall be required to disclose this use, provides certain exceptions for, among others, media distributed by a bona fide news reporting entity for certain purposes. Introduced by Sen. Kristen Gonzalez [D], Asm. Steven Otis [D], and Asm. Alex Bores [D] in May 2024, passed both chambers nearly unanimously, and signed into law on June 28, 2024.
Legal Actions:
Volokh V. James: Successful challenge to NY Hate Speech Law (A7865 and S4511). In 2022, New York enacted an “Online Hate Speech Law” on a large bipartisan basis that would have required social media sites to promulgate policies governing so-called “hateful conduct” and create “mechanisms” by which users can report such conduct. The statute defines “Hateful conduct” as online speech that can “vilify” or “humiliate” a group or a class on the basis of race, sex, and other traits. The bill passed the Senate 59-4, with Republican Senators Ortt and Oberacker among the 4 ‘nay’ votes. The bill passed the Assembly by a vote of 112-37 and was quickly signed into law by Governor Kathy Hochul.
The law was soon challenged in a lawsuit brought by several online platform operators, including law professor and First Amendment expert Eugene Volokh, who was represented by attorneys from the Foundation for Individual Rights and Expression (FIRE). New York Attorney General Letitia James defended the law. A district court ruled in favor of Volokh and blocked the law from going into effect, holding that it likely compelled speech in violation of the First Amendment. The court found that the law impermissibly required sites to publish a “hateful conduct” policy even if they would prefer not to publish any such policy, forcing them to speak when they would prefer to remain silent. District Judge Andrew L. Carter Jr. ruled that “The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.” New York appealed that decision to the Second Circuit. The Second Circuit heard oral arguments on the appeal on February 16, 2024.
NRA v. Vullo: National Rifle Association Sues New York Department of Finance for Coercing Denial of Financial Services. In 2018, New York’s Department of Financial Services (DFS), which regulates banks and insurance companies in the state, opened an investigation into NRA-endorsed insurance programs to provide coverage for injuries caused by guns. One year later, three insurance companies acknowledged that some of the NRA-endorsed programs violated state law, and agreed not to provide any such programs to New York residents and to pay fines of up to $7 million. Later that year, DFS head Maria Vullo issued a press statement and “guidance” letters calling on banks and insurance companies to consider the risks to their reputations of doing business with organizations that promote guns. Consequently, several insurance companies ended their relationships with the NRA, and some banks withdrew their bids for the group’s business. In response, the NRA filed a lawsuit against Vullo in federal court, arguing that she violated its First Amendment right by threatening the companies into denying the NRA provision of financial services.
Although a federal district court allowed the NRA’s claim to proceed, the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the NRA had “failed to plausibly allege that Vullo crossed the line between attempts to convince and attempts to coerce,” and ruling that Vullo was entitled to immunity because the law governing the NRA’s First Amendment claim was not clearly established.
In 2023, the Supreme Court decided to hear the case, and it was argued in front of the Supreme Court on March 18, 2024. Over 30 different groups, including the above-described coalition of Republican Attorneys General, filed amicus briefs in this case. On May 30, 2024, SCOTUS held that “The NRA plausibly alleged that the respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy,” overturned the 2nd Circuit ruling, and remanded the case to the district court.
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