Volokh v. James, 148 F.4th 71

Background

After the May 2022 Buffalo mass shooting, New York enacted N.Y. Gen. Bus. Law § 394-ccc (the “Hateful Conduct Law”), effective December 3, 2022, directing social‑media networks to (1) publish a "clear and concise" policy describing how they will "respond and address" reports of "hateful conduct," and (2) provide a clear, accessible mechanism for users to report incidents of such conduct.
The statute defines "hateful conduct" to include use of a social‑media network to "vilify, humiliate, or incite violence" against protected groups, and authorizes civil penalties (up to $1,000/day) for "knowingly" failing to comply; it also contains a savings clause disclaiming that it should be construed to affect free‑speech rights.
Plaintiffs (Eugene Volokh, Locals, and Rumble) sued the New York Attorney General, alleging (inter alia) that the law: (a) is a content‑ and viewpoint‑based restriction and an unconstitutional compelled‑speech mandate; (b) is overbroad and unconstitutionally vague; and (c) is preempted by Section 230. They moved for a preliminary injunction.
The district court preliminarily enjoined enforcement, finding plaintiffs likely to succeed on as‑applied First Amendment claims and on facial overbreadth/vagueness grounds. The State appealed.
The Second Circuit concluded the dispositive constitutional questions turn on how the statute should be interpreted (i.e., whether it requires platforms to adopt the statute’s definition of "hateful conduct" or merely to publish whatever moderation policy they choose and provide a generic reporting avenue). Because that interpretation is unsettled and dispositive, the court certified three questions to the New York Court of Appeals rather than finally resolving the constitutional issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) As‑applied challenge to Policy Disclosure Requirement (§ 394‑ccc(3))	The Requirement compels platforms to adopt and publicly endorse the State’s definition of "hateful conduct," forcing controversial, content‑based disclosures and editorial judgments, so strict scrutiny applies and the law fails.	The Requirement is a neutral commercial‑style disclosure: platforms need only publish whatever content‑moderation policy they choose; such factual disclosures fall under Zauderer (relaxed) review and survive.	Whether Zauderer or strict/intermediate scrutiny applies depends on statutory interpretation. If the statute only mandates disclosure of whatever policy the platform already has, Zauderer likely governs and Plaintiffs are unlikely to prevail; if it requires referring to the State’s definition of "hateful conduct," stricter scrutiny applies and the law likely fails. The interpretation question is certified to the NY Court of Appeals.
2) As‑applied challenge to Report Mechanism Requirement (§ 394‑ccc(2))	The reporting‑mechanism obligation forces platforms to create and operate a dedicated mechanism for reporting State‑defined "hateful conduct" and to (effectively) respond to reports, thereby compelling speech and editorial choices subject to strict scrutiny.	The Requirement regulates conduct (a consumer‑protection style obligation to maintain a complaint channel) and does not require platforms to adopt the State’s definition or to actually respond; it therefore does not meaningfully regulate speech.	Constitutionality turns on whether the statutory text requires (a) a generic reporting avenue or (b) a dedicated mechanism tied to the statute’s definition and on whether it requires responses. Those interpretive questions are certified to the NY Court of Appeals.
3) Facial overbreadth and vagueness challenges	The law’s broad terms (e.g., "vilify," "humiliate") and singling out of "hateful conduct" will chill a substantial amount of protected speech; facial invalidation is warranted.	If construed narrowly (merely requiring disclosure of platforms’ own policies and a generic reporting mechanism), the purported chilling and vagueness concerns are reduced or avoided.	The district court found a substantial likelihood of facial invalidity, but the Second Circuit declined to decide the facial issues because they depend on the state‑law interpretation now certified to the NY Court of Appeals.
4) Appropriateness of certifying state‑law questions	(N/A to plaintiffs)	Certification to the NY Court of Appeals is appropriate because the meaning of § 394‑ccc is unsettled, its interpretation involves state law and policy judgment, and the answers are likely dispositive of the constitutional disputes.	The Second Circuit certified three specific interpretive questions to the New York Court of Appeals and retained jurisdiction. Justice Jacobs dissented, arguing the statute is plainly unconstitutional and certification was unnecessary and dilatory.

Key Cases Cited

Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (content‑based restrictions on speech trigger exacting scrutiny)
Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based regulation defined by reference to communicative content)
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (levels of First Amendment scrutiny and review framework)
Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781 (1988) (compelled speech doctrine; compelled disclosures may implicate First Amendment)
Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (forcing speakers to include others' messages can violate speaker's First Amendment rights)
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (compelled commercial disclosures of factual, uncontroversial information are subject to relaxed review)
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (intermediate scrutiny for commercial speech)
Matal v. Tam, 582 U.S. 218 (2017) (government may not suppress speech merely because it is hateful)
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (financial disincentives keyed to content trigger heightened scrutiny)
Moody v. NetChoice, LLC, 603 U.S. 707 (2024) (compilation and curation of third‑party speech is expressive activity; restrictions on platforms' editorial choices can implicate the First Amendment)
New York State Restaurant Ass'n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (Zauderer applied to menu‑calorie disclosures)
Evergreen Ass'n, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014) (limitations on applying Zauderer where required disclosures were controversial)
Volokh v. James, 656 F. Supp. 3d 431 (S.D.N.Y. 2023) (district court preliminary injunction enjoining § 394‑ccc enforcement)