Volokh v. James

Background

Eugene Volokh, Locals Technology Inc., and Rumble Canada Inc. sued Letitia James in her official capacity as New York Attorney General. They challenged New York General Business Law § 394-ccc, called the Hateful Conduct Law. The plaintiffs alleged facial and as-applied First Amendment violations, including that the law regulated speech based on content and viewpoint, was overly broad, and was unclear. They also alleged that the law was preempted by Section 230 of the Communications Decency Act.

The law applied to qualifying social-media networks and defined “hateful conduct” as using a social-media network to vilify, humiliate, or incite violence against a group or class based on listed characteristics, including race, religion, ethnicity, disability, sex, sexual orientation, gender identity, or gender expression. It required covered networks to maintain an accessible process for users to report such conduct and to publish a policy explaining how the network would respond to those reports. The law authorized the Attorney General to investigate violations and imposed civil penalties for knowing noncompliance.

Preliminary-Injunction Standard

The court explained that a preliminary injunction requires a showing of likely success on the merits, likely irreparable harm without preliminary relief, a favorable balance of the equities, and consistency with the public interest. Because the requested injunction would provide substantially all the relief sought in the complaint, the plaintiffs had to show a clear or substantial likelihood of success on the merits.

First Amendment Claims

The court held that the plaintiffs demonstrated a substantial likelihood of success on their as-applied First Amendment claims. It reasoned that the law did more than require a complaint mechanism: it required social-media networks to create and publish policies explaining how they would respond to reports of hateful conduct. In the court’s view, that requirement compelled the networks to speak and to endorse, or at least adopt, the state’s definition of hateful conduct.

The court rejected the argument that the required policies were merely commercial speech or purely factual disclosures. It concluded that the policies addressed the range of protected speech users could engage in and were intertwined with the plaintiffs’ speech-related activities. The court also recognized the plaintiffs’ editorial interests in deciding what content to publish, remove, or allow on their platforms.

Because the law regulated speech based on its content, the court applied strict scrutiny, which requires a law to be narrowly tailored to serve a compelling governmental interest. The court acknowledged that preventing hate-fueled mass shootings could be a compelling governmental interest. But it concluded that the law was not narrowly tailored because it required complaint mechanisms without requiring networks to respond to complaints or remove content, making the law’s effect on mass shootings unclear. The court also noted that the law reached beyond speech that is intended and likely to produce imminent lawless action.

The court further found a substantial likelihood of success on the plaintiffs’ facial First Amendment challenges. It concluded that the law could reach a substantial amount of protected speech and might cause social-media users to avoid speech that could be viewed as hateful. The court also found terms such as “vilify” and “humiliate” insufficiently definite to give users adequate notice of what speech or conduct was targeted. It determined that severing portions of the law would not save the entire statute.

Communications Decency Act Claim

The court rejected the plaintiffs’ preemption claim at the preliminary-injunction stage. Section 230 generally prevents an interactive computer service from being treated as the publisher or speaker of information provided by another content provider. The court read the Hateful Conduct Law as imposing liability for failing to provide a reporting mechanism or disclose a policy—not for failing to respond to reports, for users’ conduct, or for failing to remove hateful conduct. It therefore concluded that the law did not treat the plaintiffs as publishers in violation of Section 230.

Equities and Disposition

Because the plaintiffs showed a substantial likelihood of success on their First Amendment claims, the court found that the balance of the equities favored them and that blocking enforcement of a statute that potentially violated constitutional rights served the public interest. Judge Andrew L. Carter, Jr. granted the plaintiffs’ motion for a preliminary injunction and prohibited enforcement of New York General Business Law § 394-ccc. The court directed the Clerk to terminate the pending motion at ECF No. 8.