NY Launches Ridiculous, Blatantly Unconstitutional ‘Investigations’ Into Twitch, Discord; Deflecting Blame From NY’s Own Failings

I recognized that lots of people are angry and frustrated over the mass murdering jackass who killed ten people at a Buffalo grocery store last weekend. I’m angry and frustrated about it as well. But, the problem with anger and frustration is that it often leads people to lash out in irrational ways, and to “do something” even if that “something” is counterproductive and destructive. In this case, we’ve already seen politicians and the media trying to drive the conversation away from larger issues around racism, mental health, law enforcement, social safety nets and more… and look for something to blame.

While they seem to recognize that they can’t actually blame news outlets that have fanned the flames of divisiveness and bigotry and hatred — because of the 1st Amendment — for whatever reason, they refuse to apply that basic recognition to newer media, such as video games and the internet.

We already discussed how NY’s governor, Kathy Hochul, seemed really focused on blaming internet companies for her own state’s failures to stop the shooter, and now her Attorney General, Letitia James, has made it official: she’s opening investigations into Twitch, 4chan, 8chan, and Discord, claiming that those were the platforms used by the murderer. James notes that she’s doing this directly in response to a request from Hochul.

“The terror attack in Buffalo has once again revealed the depths and danger of the online forums that spread and promote hate,” said Attorney General James. “The fact that an individual can post detailed plans to commit such an act of hate without consequence, and then stream it for the world to see is bone-chilling and unfathomable. As we continue to mourn and honor the lives that were stolen, we are taking serious action to investigate these companies for their roles in this attack. Time and time again, we have seen the real-world devastation that is borne of these dangerous and hateful platforms, and we are doing everything in our power to shine a spotlight on this alarming behavior and take action to ensure it never happens again.”

It has been reported that the shooter posted online for months about his hatred for specific groups, promoted white supremacist theories, and even discussed potential plans to terrorize an elementary school, church, and other locations he believed would have a considerable community of Black people to attack. Those postings included detailed information about plans to carry out an attack in a predominantly Black neighborhood in Buffalo and his visits to the site of the shooting in the weeks prior. The shooter also streamed the attack on another social media platform, which was accessible to the public, and posted a 180-page manifesto online about his bigoted views.

She claims that these investigations are authorized by the very broad law granting the AG the powers to investigate issues related to “the public peace, public safety and public justice.” Except, the 1st Amendment does not allow regulation of speech, and that’s what this investigation actually is.

Imagine the (quite reasonable) outrage if James announced she was opening an investigation into Fox News. Or, if you’re on the other side of the political aisle, imagine if Texas AG Ken Paxton announced an investigation into MSNBC. You’d immediately argue that those were politically motivated intimidation techniques, designed to suppress the free speech rights of those organizations.

The same is true here.

Or, if you’re going to argue that these websites are somehow different than news channels, let’s try this on for size. If you’re okay with James doing this investigation, are you similarly okay with Paxton investigating Discord, Facebook, Twitter and other such sites for groups forming to help women get an abortion? Or how would you feel if Florida’s Ashley Moody began investigating these sites for helping schoolchildren get access to books that are being banned.

You’d be correctly outraged, as you should in either case.

Anything that you could possibly “blame” any of these sites for is obviously protected by the 1st Amendment. First off, it’s almost guaranteed that none of these organizations had detailed knowledge of this one terrible person’s screeds and planning. Even in a world absent Section 230, the lack of actual knowledge by these platforms would mean that they could not be held liable, under the 1st Amendment.

Then again, we’re in a world where we do have Section 230, and that further makes this plan for an investigation ridiculous, because it seems quite clear that this investigation is an attempt to hold websites liable for the speech of one of its users. And that’s not allowed under 230.

Of course, you might argue that it’s not an attempt to hold them liable for his speech, but his murderous actions. But you’d still be wrong, because he didn’t use any of these websites to murder people. He may have used them to talk about whatever hateful ideology he has, and his plans, but that’s not (in any way) the same thing.

Meanwhile, it’s difficult to look at this and not think that AG James and Governor Hochul are hyping this all up to deflect from their own government’s failings. It’s now been widely reported that the shooter had made previous threats that law enforcement investigated. It’s also been reported that the weapon he used in the shooting included a high capacity magazine that is illegal in NY. Also, and this may be the most damning of all: there are reports that someone in the grocery store called 911 and the dispatcher HUNG UP ON THEM.

In other words, there appear to be multiple examples of how NY’s own law enforcement failed here. And I guess it’s not surprising that the Governor and the highest law enforcement officer of the state would rather pin the blame elsewhere, than reflect on how they, themselves, failed.

But, that lack of introspection is how we continue failing.