Can someone please tell New York things have changed? New Yorkers are stuck in the Biden era or earlier. Some are still pushing BLM-catch-and-release policing; some are still hoping that defunding the cops might somehow be a way to make the streets safer.

Meanwhile, they just nominated 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 biggest policy throwback 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 of service include definitions for terms including hate speech, racism, extremism, misinformation, harassment, and foreign political interference. The companies would then be required to include those definitions in a report. 

These “terms of service" reports would also require companies to disclose details regarding their “content moderation practices” by providing metrics and data as to the number of content, groups, and users flagged for violation, number of actions taken, and types of enforcement actions, all enforced with the penalty of a fine that could run as much as of $15,000 per day. New York 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, “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 a plethora of bills for regulating social media content moderation policies at state houses around the country.

Progressives relished censorship power because the most popular platforms conformed to their desires, but could not or would not see how 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 argument was that our 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 public censors. In the 18th century, none of the forward-thinking men who founded this nation could have envisioned a day when technology and global corporations would overshadow the power of governments to control information. The social media giants 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 Biden 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 having your post suppressed. If you were an unimportant person your message would just be blocked. If you were important enough, like a conservative journalist trying to report out the fuller story, your account would be locked. The Post, one of the largest mass circulation dailies, could not retweet its own article. It was high times for the woke and their newly discovered ability to silence opposing views, First Amendment 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 argues that the “Content Category Report” portion of the law is unconstitutional, and that content moderation “engenders considerable debate among reasonable people about where to draw the correct proverbial line.” 

“This is not a role the government may play,” X’s suit says, arguing 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.”

Subscribe Today

Get daily emails in your inbox

Email Address:

“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 wannabe 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. That same year, 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.