New York’s gun law goes too far

Last spring, 10 people were killed in a racially motivated mass killing at a predominantly Black grocery store in Buffalo. It was the 198th mass shooting of the year, with 450 to follow before the year was out. Acts of mass violence like these shake the foundations of our society, making people fearful when they shop for groceries, attend church, or go to school. They can also make people less willing to exercise important First Amendment rights — including the right to dissent, to assemble publicly, and to protest — because they do not feel safe doing so.

Just months after the Buffalo massacre, and days after the U.S. Supreme Court struck down New York’s longstanding concealed-carry law, New York passed a replacement law. Most of the law’s new requirements are well-founded; the state has a strong interest in regulating access to guns, and limits on concealed-carry can serve important First Amendment values by facilitating peaceful engagement in civic life and public discourse.

But one of the new law’s provisions undermines those same values. Anyone applying for a concealed-carry license must provide the state with a list of all of their social media accounts used in the last three years, so that the state can assess whether they have “good moral character.”

A federal appeals court will consider the constitutionality of New York’s concealed-carry law, including this social media registration requirement, today. That provision, however well-intentioned, is misguided and violates the First Amendment.

This dragnet collection of social media information by the government 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 countless others that are unlikely to shed light on whether applicants are likely to harm themselves or others.

Disclosing those accounts will, however, expose a wealth of personal information to government scrutiny. Faced with the knowledge that the government is watching, many will censor what they say, not knowing how it might be interpreted. They may also stop engaging on social media with controversial individuals or groups — think Black Lives Matter, pro- or anti-abortion groups, or gun advocacy organizations. These harms are even greater for people who use pseudonyms on their social media accounts to protect their privacy or out of fear of retaliation, and who will be forced to give up their right to speak anonymously online in exchange for a license.

The state has not demonstrated that the social media registration requirement meaningfully assists in predicting acts of violence. Looking backward and suddenly seeing signs is one thing; predicting the future is another. And there is reason to doubt that someone seeking to commit violence will in fact apply for a concealed-carry license (including because those under 21 years old are ineligible), actually provide all their social media accounts, and not delete any public posts about their intentions on those accounts.

Importantly, there is no need for this kind of dragnet social media registration requirement because the state can ask for social media account information in individual cases, if the circumstances merit such review: the law allows licensing officers to request any “reasonably necessary” additional information.

Instead of weeding out those likely to commit violence, the registration requirement is more likely to inject bias into the process. Licensing officers’ political, religious, and social views may warp their perceptions, leading them to disproportionately disqualify applicants from marginalized communities. (A similar concern underpins recent efforts to limit the use of rap lyrics in criminal proceedings.) At the same time, language barriers, a lack of cultural context, and the risk of misinterpreting sarcasm and hyperbole all make the likelihood of misunderstandings high.

If allowed to stand, this law won’t be the last time we’re forced to hand over intimate and wide-ranging information in exchange for the ability to exercise our rights. The federal government is already collecting social media handles from visa applicants from other countries — nearly 15 million a year — under a requirement put in place by the Trump administration. (The Knight Institute, where I work, has challenged the visa requirement’s constitutionality in court.) One can easily envision a future in which such demands are routine, whether it is for a concealed-carry license or a driver’s license.

Preventing gun violence is among the most urgent priorities in the United States today. But this is not the way to achieve it. The appeals court should recognize the heavy costs and only speculative benefits of the social media registration requirement, and put a stop to its enforcement.