Babylon Bee files amicus brief in challenge to New York’s Online Hate Speech Law

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Government restrictions on who can say what on social media are not just chilling individual speech — they’re also killing comedy.

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Christian satire website the Babylon Bee has filed a brief urging the Second Circuit for the U.S. Court of Appeals to uphold a lower court decision enjoining a New York law that requires social media companies to remove “hateful content” as defined by the state government.

The law requires social media companies to promulgate policies to mitigate “hateful conduct,” which includes speech that could “vilify” or “humiliate” a group of people belonging to protected classes.

Many have challenged the law, including UCLA law professor Eugene Volokh, the proprietor of the blog “The Volokh Conspiracy.”

Specifically, the law mandates that social media companies report incidents of “hateful conduct” as defined by the state, whether the social media company agrees that it is hateful conduct or not. The platforms are also compelled to post on their pages New York’s definition of hateful conduct.

The Babylon Bee filed a brief with the help of Alliance Defending Freedom (ADF), calling on the court to rule the law a violation of the First Amendment. Keeping its satirical tone even in its legal filing, the brief reads,

“The Babylon Bee is a news satire site, similar in tone, style, and purpose to other fake news sites you may have heard of, such as The Onion or CNN… Unfortunately, the world’s absurdity has made our job more difficult—we have to think up fictional stories that are more outlandish than what happens in real life. Effective satire caricatures reality to make a point, but that becomes challenging when reality itself has become a caricature.

“Adding to our troubles, The Bee is a frequent target of online censorship and attacks by humorless scolds, Big Tech, and prestigious media outlets. New York’s Online Hate Speech Law increases that censorship. As lovers of free speech and humor, The Bee has a substantial interest in the outcome here.”

The Bee has found itself the target of much outrage from the left, including when it was banned from the platform formerly known as Twitter after referring to Admiral Rachel Levine, who is a male who identifies as female, as its “Man of the Year.” Twitter banned the Bee under a “hateful conduct” policy. After Twitter was purchased by Elon Musk, the Bee was restored to Twitter, now called “X”.

Facebook demonetized the satire website after it ran an article making fun of Hawaii Sen. Mazie Hirono’s hostile questioning of Justice Amy Coney Barrett at her confirmation hearing. Facebook claimed the Bee was inciting violence.

The Bee’s articles, no matter how obviously satirical and even ridiculous, have actually been factchecked by major news outlets, including articles that clearly were satire, such as this one headlined: “CNN Purchases Industrial-Sized Washing Machine To Spin the News Before Publication.”

The Bee claims that the New York law, like these instances, chills speech. “These formal and informal instances of censorship would chill reasonable people from engaging in similar speech. And that’s the Reporting Mechanism’s intended effect. It incentivizes users to report speech they dislike, chilling other users from saying anything that might arguably fit the statutory definition of ‘hateful conduct’ to avoid repercussions,” they wrote.

The brief claims that the state’s reporting requirement “authorizes and encourages users to report other users’ protected speech to social-media networks. These tattle-tale requirements chill reasonable people’s speech by discouraging them from making comments that might arguably fit within a reportable category of speech. The marketplace for ideas and debate becomes a sea of suspicion and retaliatory reports.”

The brief also claims that by requiring platforms to post New York’s definition of hateful conduct, the state is compelling speech.

Jeremy Tedesco, ADF senior counsel and senior vice president for corporate engagement, said in a statement,

“Government officials cannot bypass the First Amendment by forcing Americans to censor themselves, yet that is exactly what New York is trying to do here. Worse, New York is forcing social media networks to adopt policy language that clearly violates the First Amendment. So-called ‘hateful conduct’ policies are impermissibly overbroad and permit those applying them to censor opinions they don’t like. We’re seeing that form of censorship more and more from government officials, social media platforms, and even financial institutions. That’s a disturbing trend and it needs to stop.”

The case comes as the Fifth Circuit Court of Appeals ruled that the White House, the Surgeon General, the Centers for Disease Control and Prevention (CDC), and the FBI all coerced or significantly encouraged social media companies to censor content the government disagreed with. The Fifth Circuit placed an injunction that bars the government from coercing censorship on social media, an injunction that has been appealed to the U.S. Supreme Court.

G.K. Chesterton, the Christian philosopher once said,

“We shall soon be in a world in which a man may be howled down for saying that two and two make four, in which furious party cries will be raised against anybody who says that cows have horns, in which people will persecute the heresy of calling a triangle a three-sided figure, and hang a man for maddening a mob with the news that grass is green.”

We are now in a world where a man is kicked off of social media and deemed guilty of hateful conduct because he says a man is a man. When the establishment media is operating as the propaganda arm of the government, refusing to question it or point out its failures, lies, or absurdities, the right to freedom of speech, the need for the open forum, and the need for satire grows larger. Satire is humorous because there is a grain of truth to it, or sometimes much more than a grain. Headlines the Bee has run as satire have actually ended up happening because of the ridiculous state of politics and society.

The government knows what it is doing by passing these laws. It seeks to silence dissent, control what people may read, and to intimidate would-be speakers.

This law must be ruled unconstitutional. If the government is allowed to determine which speech is acceptable and which is not, and if citizens are allowed to report on other citizens to the government, then we will no longer be a constitutional republic or even a free country. We will be living in a totalitarian state.

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