Volokh v. James, 656 F.Supp.3d 431

Background

Plaintiffs (Volokh, Rumble, Locals) operate online speech platforms and say they fall within New York’s definition of a “social media network.”
In response to the Buffalo racially motivated livestreamed mass shooting and related online dissemination, New York enacted N.Y. Gen. Bus. Law § 394-ccc (the “Hateful Conduct Law”).
The law requires covered platforms to (1) provide an easily accessible user complaint mechanism for “hateful conduct” and (2) publish a clear policy explaining how the platform will respond to such complaints; civil penalties may follow for knowing noncompliance.
Plaintiffs, which describe themselves as having pro–free speech moderation philosophies, challenged the law (facial and as-applied) under the First Amendment and asserted Section 230 preemption, and moved for a preliminary injunction.
The district court concluded the law compels and constrains protected speech, is content- and viewpoint-based, is not narrowly tailored to the asserted interests, is overbroad and vague, but is not preempted by Section 230; it granted a preliminary injunction barring enforcement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the law compels speech by forcing platforms to adopt/state a definition and policy on “hateful conduct”	Law forces platforms to speak and adopt the State’s definition of hateful conduct, altering editorial judgment	Law merely requires a reporting mechanism and optional response capability; it regulates conduct not speech	Court: Requirement to publish a policy compels speech and alters platforms’ editorial choices; likely unconstitutional as applied
Whether the requirement is commercial speech (lower scrutiny)	Platforms’ policy requirement is not commercial speech—it’s expressive and tied to protected content	Requirement is a factual disclosure akin to mandated commercial disclosures; so subject to lesser scrutiny	Court: Not commercial speech; it is expressive and implicates protected speech, so higher scrutiny applies
Whether the law survives strict scrutiny (narrow tailoring/compelling interest), including incitement carve-out	State interest in preventing mass-shootings is compelling, but law is not narrowly tailored to that aim	Law targets incitement and hateful conduct tied to violence; State’s interest justified	Court: Preventing violence is compelling but the law is not narrowly tailored (it reaches vast protected speech beyond true incitement)
Facial overbreadth and vagueness	Statute chills a substantial amount of protected speech and uses indefinite terms (e.g., “vilify,” “humiliate”) causing chill	Terms are ordinary and understandable; plaintiffs have not shown substantial chill	Court: Plaintiffs likely to succeed on facial overbreadth and vagueness; law chills protected speech and is indefinite
Whether § 230 preempts the law	Law conflicts with § 230 by imposing liability for publisher decisions and policing content	Law regulates procedural obligations (reporting mechanism and disclosure), not publisher liability for user content; therefore consistent with § 230	Court: § 230 does not preempt the statute as written because it does not treat platforms as publishers of third‑party content

Key Cases Cited

Matal v. Tam, 137 S. Ct. 1744 (2017) (First Amendment protects offensive and hateful speech)
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (government may not impose content- or viewpoint-based restrictions on speech)
Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) (content-based regulations trigger strict scrutiny)
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018) (compelled disclosures that force advocacy are subject to heightened scrutiny)
Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) (compelled speech doctrine and analysis of compelled disclosures)
Pacific Gas & Electric Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1 (1986) (forcing a speaker to carry a message with which it disagrees violates the First Amendment)
Evergreen Ass’n, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014) (compelled disclosures burden protected expressive activity)
NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022) (platforms’ editorial choices are protected by the First Amendment)
New York State Restaurant Ass’n v. New York City Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (distinguishing mandated factual commercial disclosures)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (identifies unprotected categories such as fighting words)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement requires intent and likelihood of imminent lawless action)