Social Media Portion Of New York’s Gun Law Gives The State ‘Arbitrary And Unbounded Discretion,’ Experts Say

The social media requirement in New York’s concealed carry law imposes an unjustified burden on applicants while giving the state arbitrary and unbounded discretion that violates the First Amendment, experts told the Daily Caller News Foundation.
The law requires that applicants show they are of “good moral character” to receive a concealed carry permit, but First Amendment experts have argued that the social media requirement within the “good moral character” portion of the law is unconstitutional.
In February, Columbia University’s Knight First Amendment Institute, alongside several gun advocacy groups of differing opinions, filed an amicus brief in a lawsuit against the social media requirement.

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A portion of New York’s concealed carry law, which mandates that applicants turn over their social media accounts to the state for review, imposes an unjustified burden on applicants while giving the state arbitrary and unbounded discretion that violates the First Amendment, experts told the Daily Caller News Foundation.

New York’s concealed carry law requires that applicants show they are of “good moral character” to receive a concealed carry permit, but First Amendment experts have argued that the social media requirement within the “good moral character” portion of the law is unconstitutional. Under the new concealed carry law, applicants must turnover a complete list of their social media accounts from the last three years, including accounts that are created under pseudonyms, according to the legislation.

“New York has no basis for prying into your personal or political views when it’s deciding whether it can take away your constitutional rights,” Free Speech Advocacy Group Institute For Free Speech President David Keaton told the DCNF.

In February, Columbia University’s Knight First Amendment Institute, alongside several gun advocacy groups of differing opinions, filed an amicus brief alleging that the social media requirement “imposes a significant and unjustified burden” on First Amendment rights, according to the brief filed in the United States Court of Appeal For The Second District.

“While New York plainly has a legitimate interest in regulating concealed carry, its regulations must conform to the First Amendment, and this particular provision of New York’s new gun law does not,” Staff Attorney at the Knight Institute Anna Diakun said in a release.“Not only has the state failed to demonstrate that the social media registration requirement will actually further its goals, but it has also failed to acknowledge its costs.”

New York says the requirement for applicants to list their social media accounts is constitutional in part because some previous mass shooters posted threats online, but it doesn’t discuss the possibility that they’ll just apply for a permit without listing their accounts. pic.twitter.com/NoDdjz6QuR

— Firearms Policy Coalition (@gunpolicy) August 15, 2022

The law was implemented in June following the landmark SCOTUS case New York State Rifle and Pistol Association v. Bruen, which struck down the portion of New York’s concealed carry law that required applicants show “proper cause” for a permit, according to the ruling. Following the ruling, New York switched the “proper cause” requirement to the “moral character” requirement,” leading gun right advocacy group Gun Owners of America (GOA) to call the new law a “retaliation against the Supreme Court by state government officials in defiance of the court’s authority and the Constitution,” according to a GOA release.

“It’s briefs like this that do a great job of bringing home the impact of ostensibly ‘well intentioned’ laws and letting folks know that they encroach upon core First Amendment freedoms, in this case, the right to anonymous speech, the right to Association without government interference, and really just the limits of the government’s ability to reach into your life as a precondition to interacting with the state, here in the form of getting a concealed carry permit,” Senior Director of Communications for the Foundation for Individual Rights and Expression (FIRE) Daniel Burnett told the DCNF.

The Knight Institute, and associated gun advocacy groups, argued in the amicus brief that the social media requirement “chills concealed-carry applicants’ constitutionally protected speech” and hinders their willingness to freely speak privately online, according to the press release. The group further argued that the requirement will be “exacerbated” for those in marginalized communities, as they already “distrust law enforcement and fear the government’s scrutiny of their online lives.”

“In addition to impact the freedom of association, the right to anonymous speech, the consideration by the state here, of whether or not the applicants are of good moral character, and the use of social media accounts to evaluate that good moral character, puts an awful lot of power in the government to decide what constitutes good moral character,” Burnett said. “That’s the kind of arbitrary and unbounded discretion that the First Amendment does not permit government decision makers. The government is not an appropriate arbiter of what is ‘good or immoral.’”

Following the passing of the law, GOA filed a lawsuit in August against New York State Police Superintendent Kevin P. Bruen, saying the state has “no intention of adhering to the rules and will continue to illegally restrict the rights of law-abiding Americans.”

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