Volokh v. James

Background

The plaintiffs filed this case challenging enforcement of New York’s Hateful Conduct Law, N.Y. Gen. Bus. Law § 394-ccc(1)(a). The court previously issued a preliminary injunction—an order entered before final judgment that temporarily restricts a party’s conduct—barring enforcement of that law. The defendant appealed, and the case was stayed while the appeal remained pending.

On October 12, 2023, Attorney General James sent investigative letters to six social-media networks, including Plaintiff Rumble. The letters referred to concerns about reports of antisemitism, Islamophobia, calls for violence, and terrorist activity on social-media platforms. They asked the recipients to provide written information about their content-moderation policies and responses to calls for violence. The letters did not mention the Hateful Conduct Law, require a response, or threaten penalties for failing to respond. After Rumble objected, James’s Office withdrew the letter because Rumble had already provided its content-moderation policies.

Legal Standard

A motion to enforce is a procedure for asking a court to require compliance with an existing order. The party seeking enforcement must prove, by a preponderance of the evidence—meaning that the violation was more likely than not—that the other party failed to follow the order. A finding of contempt, which can lead to sanctions, is not required for enforcement.

Discussion

The court held that the plaintiffs failed to meet that burden. It explained that the earlier injunction barred James from taking actions that compelled speech, began coercive investigations, or sought to impose civil penalties under the Hateful Conduct Law. The letters did not, on their face, take any of those actions.

The court rejected the plaintiffs’ argument that the letters were coercive. In assessing coercion by a public official, courts consider the tone and content of the communication, the official’s regulatory authority, any demonstrated effect on the recipient, and references to possible negative consequences. Although the court recognized that the Attorney General has regulatory authority over the plaintiffs, it found no reference in the letters or related press statements to adverse consequences, punishment, or regulatory action. The letters called for a response rather than demanding one, and the record did not show that they affected the recipient networks. The court also noted that James withdrew the letter after Rumble objected and that the plaintiffs did not allege follow-up communications.

The court separately rejected the plaintiffs’ argument that James lacked authority outside the Hateful Conduct Law to send the letters. It identified several possible sources of authority, including N.Y. Executive Law § 63(8), N.Y. Civil Rights Law § 79-n(3), and N.Y. Civil Practice Law and Rules § 2302. The court concluded that § 63(8) was not limited to wartime emergencies and that § 79-n(3)’s plain text authorized voluntary investigative requests of this type.

Disposition

Judge Carter denied the plaintiffs’ motion to enforce the preliminary injunction as to James’s issuance of voluntary interrogatory letters to regulated social-media networks. The court found that the plaintiffs had not shown, by a preponderance of the evidence, that James failed to comply with the injunction. The Clerk was directed to terminate the motions at ECF Nos. 44 and 45.