While describing recent changes to New York’s already draconian firearms laws, Hochul said (see video beginning at 11:30):
We also talked about, I mentioned, social media a number of times. I’ve called upon and working closely [sic] with our attorney general to identify what’s going on in social media. Those questions are now part of our background check, such as like in the old days you’d talk to someone’s neighbor. Now you can talk to their neighbors online and find out whether or not this person has been spouting, uh, you know, philosophies that indicate they have been radicalized, and that’s how we protect our citizens as well.
This plan, however, is problematic on its face, even before analyzing how it will be applied.
“[S]pouting philosophies,” even “radical” ones, is – of course – itself constitutionally protected conduct under the First Amendment. It cannot legitimately be suppressed by the government, nor can it legitimately be used by the government as a pretext to suppress other fundamental civil liberties like the right to keep and bear arms.
The Supreme Court has made clear that protected speech encompasses controversial expression. This includes such things as profanity, flag burning, nudity, criticism of U.S. military action during wartime, criticism of the government, and even advocacy of force or law violation, except where it is directed to inciting “imminent” lawless action and “is likely” to incite or produce such action.
Content on various social media platforms is already required to comply with the various platforms’ terms of service. As rules from private companies, these restrictions are not generally restrained by the First Amendment.
So when Kathy Hochul mentions scrutinizing social media posts to determine someone’s eligibility to exercise Second Amendment rights, she is referring to a subset of expression that is already curtailed and censored by the tech companies themselves.
Putting aside the fact that New York’s entire approach of using social media posts as the basis to deny fundamental rights is facially unconstitutional, what is left after private content moderation for these officials to consider radical?
Judging by the statements of Hochul’s fellow far-left politicians, it is likely to be common philosophies and ideas that don’t mirror their own.