Free Speech On Trial: X Corp. Vs. Letitia James
The recent lawsuit filed by X Corp against New York‘s Stop Hiding Hate Act is not merely a corporate tantrum over regulatory friction. It is, rather, a constitutional litmus test: Can the state compel a private media platform to speak? And more precisely, can it compel that speech in a format and on topics it deems urgent, namely, hate speech, misinformation, extremism, and other politically volatile categories, without violating the First Amendment?
The answer, both doctrinally and philosophically, is no. Not if we take our constitutional commitments seriously. Not if we believe in a press that is free not merely to report, but to decline to report. Not if we recall that a regime which mandates orthodoxy is functionally indistinguishable from one that punishes dissent. To compel speech is to conscript conscience, and in the digital agora of social media, the stakes for freedom of editorial judgment could hardly be higher.
The First Amendment, robustly construed, protects not only the right to speak, but the right not to speak. That protection is no less vital for corporate speakers than for individuals. In West Virginia v. Barnette, the Court affirmed this principle unambiguously: The state cannot compel an individual to salute the flag or recite its creed. Why? Because the very act of compulsion transforms opinion into obedience, conscience into compliance. What applies to schoolchildren surely applies to modern publishers.
New York’s Stop Hiding Hate Act runs afoul of this principle by requiring large social media platforms to disclose their content moderation policies and practices, specifically regarding “hate speech,” “misinformation,” and similar categories. The state’s rationale is couched in noble rhetoric: transparency, accountability, democracy. But the effect, and indeed the intent, is to conscript editorial judgment. It commands platforms to articulate their policies in state-approved terms, to issue periodic reports on state-specified topics, and to do so under the threat of $15,000-per-day penalties.
That is compelled speech, and compelled speech on matters of contested opinion. What counts as “misinformation” today may be conventional wisdom tomorrow. What is labeled “hate speech” often reflects the moral intuitions of cultural elites rather than objective legal categories. To force a platform like X to define, report on, and implicitly denounce such categories is to force a particular viewpoint, to transform a speaker into a conduit for the state’s ideological agenda.
The Supreme Court has been consistently wary of such state overreach. In Miami Herald v. Tornillo, the Court struck down a Florida law requiring newspapers to give equal space to political candidates they criticized. Even though the law aimed at fairness, the Court recognized it for what it was: a form of compelled speech that intruded on editorial discretion. The choice of what to publish, and what to withhold, is part of what makes a speaker free.
The same logic animates more recent decisions. In National Institute of Family & Life Advocates v. Becerra, the Court invalidated California’s attempt to force pro-life pregnancy centers to advertise abortion services. The law was struck down not because the information was false, but because it compelled speakers to convey messages they found objectionable.
New York’s law suffers from the same defect. It does not merely ask platforms to be clear about their terms of service. It demands that they speak in a particular voice, about particular topics, in a state-sanctioned format. That is not regulation of conduct; it is regulation of speech. And it is presumptively unconstitutional.
The Ninth Circuit reached precisely this conclusion in X Corp v. Bonta, a case challenging California’s nearly identical transparency law, AB 587. That court found the law unconstitutional on its face, noting that the compelled disclosures were non-commercial speech on deeply controversial topics, triggering strict scrutiny. The state failed that scrutiny because there were less intrusive means to achieve its goals, and because the law’s real aim appeared to be ideological enforcement, not mere transparency.
The Stop Hiding Hate Act is, if anything, worse. Where California’s law was relatively restrained, New York’s law comes armed with sharper teeth: higher penalties, broader categories, and a clear animus against X Corp’s editorial philosophy. Governor Kathy Hochul and Attorney General Letitia James have publicly criticized Elon Musk‘s management of X, decrying what they see as an irresponsible tolerance for hate and extremism. But if that is the state’s concern, its remedy must be speech of its own, not coercion of others.
Viewpoint neutrality is a bedrock requirement of any law that touches expression. In R.A.V. v. City of St. Paul, the Court struck down a hate speech ordinance because it punished speech based on viewpoint. The government may not pick sides in the marketplace of ideas, nor may it burden one side of a debate because it finds its views distasteful. Yet that is precisely what the Stop Hiding Hate Act does. By mandating reporting only on negative categories of speech, hate, extremism, misinformation, it sends a clear message: Platforms must account for their failure to suppress ideas the state disfavors.
This is not a hypothetical concern. Judicial analysis of New York’s earlier Hateful Conduct Law found the same flaw. In Volokh v. James, Judge Andrew Carter enjoined enforcement of that law, finding that it compelled speech and chilled protected expression. The parallels to the current statute are striking, and the constitutional defects just as fatal.
Defenders of the law argue that social media companies are different. They are not publishers, they say, but infrastructure. Carriers. Utilities. That argument fails both as a matter of law and logic. The Supreme Court has repeatedly held that platforms exercise editorial discretion, and are thus speakers. In Reno v. ACLU, the Court treated the internet as a medium deserving of full First Amendment protection. And in NetChoice v. Moody, the Eleventh Circuit recognized that content moderation decisions are expressive acts, entitled to constitutional safeguards.
Moreover, the compelled disclosures in question are not neutral. They do not merely report numerical data or objective facts. They require platforms to explain how they define “hate,” how they identify “misinformation,” and what policies they have to remove or mitigate such content. These are ideological questions, not technical ones. To answer them is to express a worldview.
The editorial freedom of platforms is also essential to the integrity of the digital public square. Just as newspapers decide which op-eds to publish and which letters to discard, platforms decide which voices to elevate and which to suppress. Their choices shape public discourse, for better or worse. But those choices must remain theirs. If the government can dictate how they define controversial categories of speech, it can eventually dictate whom they must ban, what they must delete, and what they must feature.
And what of Section 230? Though not directly at issue in this case, the spirit of that provision underscores a broader point: Congress has long understood that platforms need leeway to moderate content without fear of liability. New York’s law, while framed as a disclosure regime, indirectly penalizes moderation choices by turning them into targets for state scrutiny. That functionally contradicts the federal policy of encouraging free and diverse platforms.
This is not to say that platforms bear no responsibility. X Corp, like any publisher, is accountable to its users, its advertisers, and the public. But that accountability must be exercised through the voluntary mechanisms of the market, not the coercive arm of the state. The state can speak, advocate, and condemn. It can encourage platforms to do better. But it cannot force them to explain their decisions in its own preferred terms.
We must also attend to the dangers of precedent. Today, New York compels speech about hate and disinformation. Tomorrow, a different state may compel speech about patriotism, election integrity, or gender ideology. Once we allow government to mandate ideological reporting, the slope becomes not only slippery but unavoidable. The protection of editorial discretion, even for unpopular or eccentric platforms, is the bulwark against state orthodoxy.
In sum, the Stop Hiding Hate Act violates the First Amendment by compelling speech, intruding on editorial discretion, and discriminating based on viewpoint. It is neither narrowly tailored nor supported by a compelling interest that cannot be pursued through less invasive means. The law’s defects are legal, philosophical, and practical.
X Corp’s challenge to the Act, then, is not merely defensible, it is necessary. If we value the principle that the government cannot dictate what private speakers say, or how they say it, we must defend it when it is tested. That principle, like speech itself, must be protected not only in easy cases, but especially in hard ones.
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