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Opinion: New York’s Proposed Social Media Checks Are Sensible

New York is serious about holding social media outlets accountable for distributing content designed to incite hatred or violence, with a plausible strategy to avoid the inevitable objections to limiting free speech.

(TNS) — Attorney General Letitia James is serious about holding social media outlets accountable for distributing content designed to incite hatred or violence, and she even has a plausible strategy to avoid the inevitable — and important — First Amendment objections to limiting free speech.

Her proposed changes in federal and state laws, she told The News' Editorial Board, fall into the same category as child pornography — so revolting and abusive that courts have put it beyond constitutional protection. Few — we suspect and hope — would argue otherwise.

How, then, can it also be constitutionally authorized to record and spread a killing spree, as an 18-year-old man did at the Tops supermarket on Jefferson Avenue in May? How can social media companies be permitted to host the planning of murders, the intentional radicalizing of users and live video transmission of mass killings? That is surely no more defensible than child pornography.

We would add that the First Amendment also does not permit shouting "Fire!" in a crowded theater when there is no fire. The risk of mass injury and death is too great. So it is with social media posts whose aim is to incite violence. Indeed, incitement to riot is already a crime.

The man charged with the May 14 massacre at Tops was himself inspired by video of a mass shooting in a mosque in Christchurch, New Zealand. Anti-Semitic and racist content posted on the fringe message board 4chan are reported to have heightened his radicalization. Experts says the site is a breeding ground for far-right extremists.

"Online platforms should be held accountable for allowing hateful and dangerous content to spread," James said in a statement accompanying her report. "Extremist content is flourishing online, and we must all work together to confront this crisis."

A crisis is what this is. While the internet and social media hold many public benefits, society and the law have not caught up to the dangers they indisputably pose. Doing so may require threading a constitutional needle, but it's essential to craft reasonable and effective protections against incentivizing — and profiting from — mass murder. James has begun that work and she is aiming higher than New York.

The report — requested by Gov. Kathy Hochul after the Buffalo massacre — recommends limiting federal protection of internet platforms to those that take "reasonable" action to reign in "unlawful violent criminal content." That requires changing U.S. internet law Section 230, which provides internet platforms broad legal immunity from liability over users' posts — even plans for mass murder.

That surely shouldn't be controversial. The recommendation only calls only for reasonable efforts at controlling a demonstrably lethal reality. Defining those minimum efforts could surely be complicated, but that doesn't absolve Congress of the task.

James also recommends changes in New York law: criminalizing the recording of photos and videos during a homicide, and introducing civil penalties for people who share such content. In her meeting with The News, James clarified that such a law would not apply to someone who comes upon a crime in progress and records it.

We know from too many mass killings that the internet and social media, in particular, play a significant role in instigating or otherwise promoting bloodshed. We will never stop it entirely, but we can do what is possible. Governments must act.

© 2022 The Buffalo News (Buffalo, N.Y.). Distributed by Tribune Content Agency, LLC.