While Florida Gov. Ron DeSantis is roundly ridiculed by knowledgeable lawyers for his effort to dictate content to private internet enterprises, a New York state senator from Carle Place is trying her hand at re-imagining the First Amendment, including defining “hate speech.”

§ 394-CCC. SOCIAL MEDIA NETWORKS; HATE SPEECH PROHIBITED.

1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) “HATE SPEECH” MEANS A PUBLIC EXPRESSION, EITHER VERBALLY, IN WRITING OR THROUGH IMAGES, WHICH INTENTIONALLY MAKES A STATEMENT ABOUT A GROUP OF PERSONS BECAUSE OF RACE, ETHNICITY, NATIONALITY, RELIGION OR BELIEFS, SEXUAL ORIENTATION, GENDER IDENTITY OR PHYSICAL, MENTAL OR INTELLECTUAL DISABILITY.

As written, twitting “Black Lives Matter” would be hate speech, while, ironically, targeting a specific individual to call the N-word would not be. Note that it’s only statements about “a group of persons,” not an individual. On the other hand, it covers any “statement,” not even trying to limit it to false, harmful, mean, nasty, or even unpleasant ones. While that wouldn’t save the law, the words don’t even try.

The New York Senate had long been majority Republican, while the Assembly was majority Democrat, and the two houses tended to balance themselves out to some extent. Sometimes that meant paralysis. Other times, compromise. But now that the Dems hold the majority in both houses, the viciousness of the debate centers around whether new laws should merely be transformative or radical.

While many of the newly elected Dems are stronger on dreams than background, education or experience, Sen. Kaplan has a law degree from Cardozo, although it’s unclear whether she ever practiced law. She’s not registered as an attorney in New York. Still, having suffered law school, it would seem that she would have some ability to draft a law that wasn’t absurdly bad. More importantly, she would have a passing familiarity with the Constitution. Neither is apparently the case.

This proposal has yet to make it out of committee, no less signed into law. One would hope it has less chance of passing than I do of being invited to dinner by the Vice President. But then, localities, states and countries are trying to control the flat earth of the interwebz, and to some extent, have made inroads. The European Union has enacted the GDPR. China has regulated the content permitted. In the United States, FOSTA-SESTA was enacted. States have enacted “revenge porn” laws, and both right and left seek to eliminate Section 230 of the Communications Decency Act that protects me from liability for what you say here.

But “hate speech”? Many already assume that it’s not protected by the First Amendment. Many already assume they know what it is, even if they can’t define it. That doesn’t mean politicians, states, won’t try and, with enough effort and a sufficiently compliant majority, won’t eventually succeed in enacting a law.

In Kaplan’s law, the burden isn’t to criminalize the speech of those who utter it, but to create a duty on the part of platforms to address it.

2. A SOCIAL MEDIA NETWORK SHALL PROVIDE AND MAINTAIN A CLEAR AND EASI- LY ACCESSIBLE MECHANISM FOR INDIVIDUAL USERS TO REPORT AND MAKE COMPLAINTS OF HATE SPEECH. SUCH MECHANISM SHALL BE CLEARLY ACCESSIBLE TO USERS OF SUCH NETWORK AND EASILY ACCESSED FROM BOTH A SOCIAL MEDIA NETWORKS’ APPLICATION AND WEBSITE.

3. EACH SOCIAL MEDIA NETWORK SHALL HAVE A CLEAR AND CONCISE POLICY READILY AVAILABLE AND ACCESSIBLE ON THEIR WEBSITE AND APPLICATION WHICH INCLUDES HOW SUCH SOCIAL MEDIA NETWORK WILL RESPOND AND ADDRESS INCIDENTS OF HATE SPEECH WHICH HAVE BEEN REPORTED. SUCH POLICY SHALL INCLUDE A MECHANISM TO ALLOW SUCH SOCIAL MEDIA NETWORK TO PROVIDE A DIRECT RESPONSE TO ANY INDIVIDUAL WHO HAS REPORTED POSSIBLE HATE SPEECH AND INFORM SUCH INDIVIDUAL HOW THE MATTER IS BEING HANDLED.

This merely says that platforms need to have a policy and mechanism to “respond and address incidents of hate speech, as previously defined. It doesn’t say what that policy must be or how it must be addressed. The policy could be “we allow any speech” and the mechanism to respond and address could be an email saying “toughen up, teacup.” The platform would be under no obligation to rub anyone’s tummy or remove any offending speech. You get the sense that Kaplan did not spend a lot of time thinking this through. Or did and realizes there is no way to make this work.

But eventually, some state is going to push through a law that may not pass constitutional muster when it eventually gets tested in court, but twists the internet into the pretzel the politicians of that state want it to be. And there is no telling whether this will come from the right or left, as neither likes the idea that there is an entity out there beyond their control.

Whether it will be “hate speech” or a prohibition against deplatforming a candidate for office isn’t clear yet. Whether it will be stripping protections for me for allowing you to comment here isn’t clear yet. Whether it will be censorship of “fake news,” with whatever party is in power entitled to decide which news is fake, isn’t clear yet. Or whether it will be words and phrases, ideas and beliefs, that someone somewhere finds offensive, whether for themselves or on behalf of someone else, isn’t clear yet. But what is clear is that there are a lot of people trying, and eventually someone is likely to succeed, even if that person isn’t Anna Kaplan.