The US Supreme Court on June 23 struck down New York’s requirement that a person wanting a license to carry a handgun in public had to show “proper cause” or special need for such protection.
The state legislature’s response to the decision in New York State Rifle & Pistol Ass’n Inc. v. Bruen was swift and sweeping.
Eight days after Bruen was decided, Gov. Kathy Hochul (D) signed a new law, effective Sept. 1, that requires an applicant for a carry license and renewal to, among other things, complete firearms training, meet with a licensing officer, provide household information, including the presence of minors, and provide four character references
In addition, and most novelly, the law requires applicants submit a list of their social media accounts from the past three years “to confirm the information regarding the [applicant’s] character and conduct.” [i.e., that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others].
The social media disclosure requirement raises several constitutional questions: Does the forced disclosure of a person’s social media accounts, which may be deliberately anonymous, violate the First Amendment? Does the threat of a license denial based on a social media review chill the exercise of protected speech? Does the examination of a gun license applicant’s social media burden the right to bear arms in a manner prohibited by Bruen?
Existing Forced Disclosure Laws
Court decisions considering forced disclosure of social media information to the government often concern disclosures required from convicted sex offenders. Most courts have allowed mandated disclosures in these cases.
Requiring a person previously convicted of a reprehensible offense, however, to disclose social media accounts differs profoundly from requiring disclosure from a person seeking to exercise a constitutionally protected right.
Those challenging mandatory disclosure laws argue that these requirements violate their right to engage in anonymous speech. The Supreme Court has held an author’s decision to remain anonymous—“a shield from the tyranny of the majority”—is protected by the First Amendment. But like all rights, the right to anonymous expression is limited.
As disclosure laws are not intended to suppress a particular point of view, they are content-neutral. A content-neutral restriction is constitutional if it advances important governmental interests unrelated to the suppression of free speech and does not burden more speech than necessary to further those interests.
Concerning the first element, no one would seriously dispute New York has an interest in protecting the public from people who could potentially pose a danger if entrusted with a firearm. The state’s bigger challenge will be to establish that mandated disclosure of social media accounts will, in fact, reduce this danger in a direct and meaningful way.
If the state establishes that its law advances important governmental interests, it will then have to prove the law is narrowly tailored to serve the interests. The objectors will argue the mandated disclosure is overbroad and would allow the state to monitor all communications.
New York could counter that the statute does not require password disclosure or continuous updating of accounts, and limits the use of such evidence “to confirm the information regarding the [applicant’s] character and conduct as required.”
Expect First Amendment Court Challenges
The US Court of Appeals for the Second Circuit, which decides federal cases from New York, recently refused to dismiss a First Amendment challenge to a Connecticut law governing social media disclosure from sex offenders. This demonstrates that courts in First Amendment cases require more than just the state’s assertion of an interest that will be served by the challenged legislation.
Applicants may also argue that the disclosure requirement could cause a potential applicant to limit some protected speech that may appear unfavorable to a licensing officer, or that a licensing officer could consider some protected speech in denying a license. Defamation, threats, and fighting words are not protected.
Although challengers may have a difficult time showing these risks are substantial enough to declare the statute facially invalid—i.e., unconstitutional under any set of circumstances—an applicant denied a license due to online content could make an “as applied” challenge. That is, the applicant could say that the law was unconstitutionally applied to deny them a license for expressing protected speech.
Other Constitutional Concerns
The fact the mandated disclosure is triggered when an individual seeks to exercise the Second Amendment right to bear arms raises additional constitutional concerns. In Bruen, the Supreme Court clearly stated the right to bear arms cannot be treated differently than other rights.
Opponents of the new law may argue that the law’s burden of social media disclosure—a burden not required to exercise any other right—is not supported by history or precedent. They will further likely argue that allowing a licensing officer to make determinations based on an applicant’s social media behavior gives the officer too much discretion. Unfettered discretion is what partly doomed the earlier law.
The state will likely respond that viewing social media accounts is a sensible and permissible way to determine whether applicants for a carry permit have good moral character and are unlikely to cause harm.
Constitutional challenges to the statute have already started. The only certainty is, given the novelty of the statute, a return appearance at the Supreme Court is likely.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Christopher Bopst is a partner at Wilder & Linneball LLP in Buffalo, N.Y., and chair of the New York State Bar Association’s Committee on the New York State Constitution. He most recently co-authored “Bills of Rights before the Bill of Rights” with Peter J. Galie and Bethany Kirschner.