NYPD surveilling social media for hate speech could lead to intimidation, experts warn

New York’s surveillance of social media posts for hate speech and incitement of violence poses no constitutional concerns as long as authorities only monitor public posts, legal experts say.

Gov. Kathy Hochul, a Democrat, announced the surveillance effort earlier this week, as the New York Police Department noted a 214% increase in crimes against Jewish residents in October compared to the same period last year.

Eugene Volokh, a First Amendment expert and law professor at the University of California, Los Angeles, said public posts generally pose no legal problems — but when they are private, it can create some potential issues.

He said the government could use information from people to get them fired from their jobs, or intimidate people. Residents may also be worried about the monitoring program so they could be discouraged from saying certain things related to political speech due to retaliation concerns.

“There is always that danger, but there is a danger with all government policing actions,” Mr. Volokh said. “The government is entitled to see what threats are possibly coming down the pike.”

Cornell Law School professor James Grimmelmann noted that surveilling public social media has been a practice for more than a decade.

“It is typically legal and doesn’t raise any significant free-speech concerns,” he said.

However, he warned there could be more legal protections for private postings. Law enforcement may want to monitor trends generally or gang activity, Mr. Grimmelmann said.

“There are stronger protections for private posts, which generally require some kind of compulsory legal process [such as a search warrant] to access,” he said.

Chris Marchese, litigation director at NetChoice, an advocacy group aiming to keep the internet safe and open to free expression, said while there are no constitutional issues at first glance, the governor’s comments about what the New York police are doing were vague.

“A state government is saying we are going to look at the content you’re consuming and producing and if we disagree … we are going to reach out. That is what the U.K. is doing, and I think that is very troubling. If it doesn’t reach an unconstitutional level, I think it does when the police then reach out to you,” he said.

Mike Davis, founder and president of the Internet Accountability Project, said the governor is trying to “silence her critics by labeling anything with which she disagrees as ’hate speech.’”

“Democrats policing so-called ’hate speech’ online has always snowballed into targeting political speech leftists want silenced. The governor would be more effective in curbing antisemitism by calling out the Democrats’ BLM and Hamas hateful base,” Mr. Davis said.

Ms. Hochul announced that her state’s social media analysis unit has ramped up its efforts in the wake of the Oct. 7 terror attack by Hamas militants in southern Israel. About 1.6 million Jews reside in New York.

“We have launched an effort to be able to counter some of the negativity and reach out to people when we see hate speech being spoken about on online platforms,” the governor said.

A spokesperson for the NYPD and Ms. Hochul’s office did not respond to a request for comment about what law enforcement does once it detects hate speech, how they define it, if social media companies are fined or required to remove the posts, and if people are arrested for online postings.