Bill requiring social media review for pistol permit applicants violates First, Second, and 14th Amendments

BUFFALO, N.Y. – New legislation submitted in the New York State Senate, Bill S9191, would require social media content checks before a state resident could receive or renew their pistol permit.

The bill says state licensing officials would investigate posts or searches related to profane slurs, or biased language used to describe race, color, gender, and religion – as well as threatening posts or writing about an act of terrorism. If officials found such items, the pistol permit request or renewal would be denied.

Specifically, senate Bill S9191 requires the following:

• Social media and search engine reviews prior to the approval of an application or renewal of a license to carry or possess a pistol or revolver.
• Applicant’s consent to having his or her social media accounts and search engine history reviewed and investigated for certain posts and/or searches over a period of one to three years prior to the approval of such application or renewal.

“It’s clear that New York Democrats plan to use their newfound senate majority as a blunt instrument to continue this state’s policy of wantonly clubbing New Yorkers’ Second Amendment civil rights,” Attorney James Ostrowski said. “Following the path well-worn by autocrat Andrew Cuomo, Brooklyn Democrat Kevin Parker means to disregard and defy the First, Second, and 14th Amendments to the U.S. Constitution in advancing this bill. This unenforceable legislation will not go unchallenged, and 2019 will be the year in which New Yorkers’ Second Amendment rights are decisively restored.”

Similar to Cuomo’s unconstitutional SAFE Act, Parker’s bill is likewise unconstitutional on its face for the following reasons:

• Creates a chilling effect on the type of unpopular, controversial speech that is solidly protected by the First Amendment.
• Illegally profiles and penalizes New Yorkers based on how they exercise their constitutionally-protected right to free speech.
• Falsely reconstructs constitutionally-protected free speech as an artificial pretext to hold hostage New Yorkers’ Second Amendment civil rights.
• Fails to present an objective and specific definition of social media content deemed “concerning,” and thus worthy of triggering an unconstitutional denial of a new pistol permit, or permit renewal.
• Neglects to clarify if each individual judge or county sheriff could determine what social media content they believe is “concerning or not.”
• Is based on language and construction that are void for vagueness.
• Sets the stage for significant due process violations for thousands of New Yorkers.
• Lacks equal protection under the law for state residents.

Senate Bill S9191 is so flawed, it is drawing fire from Parker’s fellow state Democrats. This includes Assemblywoman-Elect Jamie Romeo of the 136th district. She notes key items in the bill, like timing and overall enforcement, are not specifically clear and, with no companion legislation in the Assembly, it has little chance of passing.

In addition to his opposition of Senate Bill S9191, Attorney James Ostrowski is rapidly progressing two major legal challenges to New York State’s unconstitutional gun laws. These challenges include:

• The People of the State of New York v. Benjamin Wassell – This case, expected to be argued in New York State Supreme Court in January 2019, seeks to reverse a SAFE Act conviction erroneously applied to a Western New York resident.
• Libertarian Party of Erie County v. Cuomo – This case, expected to be argued before the U.S. Court of Appeals in February 2019 (one step away from U.S. Supreme Court review), seeks to nullify New York State’s pistol permit requirement.

To speak with James Ostrowski, Esq. about the unconstitutional nature of Senate Bill S9191, and/or the key court challenges against New York State gun laws he’ll be leading in early 2019, please contact Steve Felano at (518) 852-1863 or sfelano@2AWNY.com.

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James Ostrowski, Esq. is a trial and appellate lawyer and libertarian writer from Buffalo, N.Y. He served as vice-chairman of the law reform committee of the New York County Lawyers Association (1986-88) and wrote two widely quoted reports critical of the law enforcement approach to the drug problem. Ostrowski has written several bar association reports and given continuing legal education lectures on habeas corpus, lawsuits against government officials and jury nullification. His policy studies have been published by the Hoover Institution, the Ludwig von Mises Institute and the Cato Institute. Ostrowski is the author of Direct Citizen Action (2010), Government Schools Are Bad for Your Kids (2009), Political Class Dismissed (2004), and other works.