Last spring, 10 people were killed in a racially motivated mass murder at a predominantly black grocery store in Buffalo. It was the 198th mass shooting of the year, followed by 450 before the year was out. Acts of mass violence like these shake the foundations of our society, making people afraid when they buy food, attend church or go to school. They can also make people less willing to exercise important First Amendment rights, including the right to dissent, assemble publicly, and protest, because they don’t feel safe doing so.
Just months after the Buffalo massacre and days after the US Supreme Court ruled. shot down New York’s long-standing concealed carry law, New York passed a replacement law. Most of the new requirements in the law are well founded; the state has a vested interest in regulating access to guns, and limits on concealed carry can serve important First Amendment values by facilitating peaceful participation in civic life and public discourse.
But one of the provisions of the new law undermines those very values. Anyone applying for a concealed carry license must provide the state with a list of all their social media accounts used in the last three years, so the state can assess whether they have “good moral character.”
A federal appeals court will today consider the constitutionality of New York’s concealed carry law, including this social media registration requirement. That provision, while well-intentioned, is wrong and violates the First Amendment.
This government gathering of social media information has a chilling effect on applicants’ exercise of their right to speak and associate with others online. The statute requires a list of all “social media accounts,” a broad term that includes platforms like Goodreads, MyFitnessPal, LinkedIn, and many others that are unlikely to shed light on whether applicants are likely to harm themselves or others. others.
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However, revealing those accounts will expose a great deal of personal information to government scrutiny. Knowing that the government is watching, many will censor what they say, not knowing how it can be interpreted. They can also stop interacting on social media with controversial people or groups, such as Black Lives Matter, pro-abortion or anti-abortion groups, or gun advocacy organizations. These damages are even greater for people who use pseudonyms on their social media accounts to protect their privacy or fear retaliation, and who will be forced to give up their right to speak anonymously online in exchange for a license.
The state has not shown that the social media registration requirement significantly helps predict acts of violence. Looking back and suddenly seeing signs is one thing; predicting the future is another. And there is reason to doubt that someone looking to commit acts of violence will apply for a concealed carry license (including because those under 21 are not eligible), provide all their social media accounts, and not delete any public posts about their intentions on those accounts.
It is important to note that there is no need for this type of raid social media registration requirement because the state may request social media account information on an individual case, if the circumstances warrant such a review: the law allows licensing officers to request any additional “reasonably necessary” information. .
Rather than weed out those likely to commit acts of violence, the registration requirement is more likely to inject bias into the process. The political, religious, and social views of licensing officers can distort their perceptions, leading them to disproportionately disqualify applicants from underserved communities. (A similar concern supports recent efforts to limit the use of rap lyrics in criminal proceedings). At the same time, language barriers, lack of cultural context, and the risk of misinterpreting sarcasm and hyperbole increase the likelihood of misunderstandings.
If left standing, this law will not be the last time we are forced to hand over far-reaching and intimate information in exchange for the ability to exercise our rights. The federal government is already collect social media identifiers from visa applicants from other countries, nearly 15 million a year, according to a requirement set by the Trump administration. (The Knight Institute, where I work, has challenged the constitutionality of the visa requirement in court.) One can easily imagine a future in which such demands are routine, whether for a concealed carry license or a driver’s license.
The prevention of gun violence is one of the most urgent priorities in the United States today. But this is not the way to achieve it. The appeals court should recognize the high costs and only speculative benefits of the social media registration requirement, and end its application.
Diakun is a staff attorney at the Knight Institute for the First Amendment at Columbia University.