Eugene Volokh, et al. v. Lettia James

New York, New York civil rights lawyers represented the Plaintiffs who sued on a First Amendment violation theory.



The Hateful Conduct Law, broadly speaking, requires social media

networks to (1) provide a "clear and easily accessible mechanism for

individual users to report incidents of hateful conduct,” id. § 394-ccc(2), and

(2) have a "clear and concise policy readily available and accessible on their

website and application which includes how such social media network will

respond and address the reports of incidents of hateful conduct,” id. § 394-

ccc(3). The statute defines "[h]ateful conduct” as "the use of a social media

network to vilify, humiliate, or incite violence against a group or a class of

persons on the basis of race, color, religion, ethnicity, national origin,

disability, sex, sexual orientation, gender identity or gender expression.” Id.

§ 394-ccc(1)(a). Plaintiffs maintain—as the district court held—that these

provisions compel social media networks to engage in speech in violation

of their First Amendment rights and chill their users from engaging in

protected speech.



The constitutionality of the Hateful Conduct Law depends on how

the statute is interpreted. If either substantive provision of the statute

requires Plaintiffs to adopt or incorporate the State's definition of "hateful

conduct,” which includes constitutionally protected speech, then we review

the statute under (at least) intermediate scrutiny, and it fails. But if Plaintiffs

can comply with the Hateful Conduct Law by disclosing a content

moderation policy that does not incorporate or affirmatively encompass the

statute's definition of "hateful conduct” and by providing a general

mechanism for reporting content-related complaints, then we review the

statute under the more relaxed standard set forth in Zauderer v. Office of

Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), and its

progeny, and the statute survives constitutional scrutiny. Whether the

statute can support the latter, constitutional interpretation is a question best

left to the New York Court of Appeals.

The foregoing is hereby certified to the Court of Appeals of the State of New

York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and

Regulations Title 22, section 500.27(a), as ordered by the United States Court of

Appeals for the Second Circuit.