Appellees Urge 2nd Circuit to Affirm Injunction vs. N.Y. Hateful Conduct Law

Both sides during oral argument Friday at the 2nd U.S. Circuit Appeals Court in New York Attorney General Letitia James’ (D) appeal to reverse the injunction that bars her from enforcing New York’s Hateful Conduct Law (see 2310160001) gave less than definitive answers when asked by the three-judge panel whether a ruling in James’ appeal should await the U.S. Supreme Court's resolution of NetChoice’s First Amendment challenges to the Florida and Texas social media content-moderation laws (see 2311300012).

The New York law, Section 394-ccc, requires social media networks to give users a mechanism for reporting hateful conduct on the platforms. The law also requires networks to disclose a policy explaining how they will respond to those user reports. The three plaintiff-appellees -- UCLA law professor Eugene Volokh, plus the Rumble Canada and Locals Technology online networks -- won the injunction against Section 394-ccc on grounds that it violates the networks’ First Amendment rights by compelling them to publish a hate speech policy statement that conforms to the state’s mandate.

The state expects that the SCOTUS decision in the NetChoice cases “may say things relevant” to the 2nd Circuit’s analysis in Volokh v. James (23-356), said Sarah Coco, assistant solicitor general in the New York AG's office. But while New York certainly has “an interest in getting this decided quickly -- there’s a state law that’s been preliminarily enjoined on its face -- I think we would defer to the court on whether it would be appropriate to wait,” she said.

The plaintiff-appellees’ attorney, James Diaz, with the Foundation for Individual Rights and Expression in Philadelphia, thinks the 2nd Circuit “certainly could” wait for the SCOTUS NetChoice decision before resolving Volokh v. James, he told the court. “I think there will be portions of that decision that will be relevant,” he said.

But Diaz doubts that it’s “necessary” for the 2nd Circuit to wait, he said. The “intrusion into editorial discretion,” as is being debated in the NetChoice cases, “is one potential reason” that the 2nd Circuit shouldn't overturn the injunction against Section 394-ccc, but “it’s not the only reason,” he said. What’s at play in the New York statute “goes much further than just an intrusion into the editorial process and decision-making in requiring certain content to be posted on a website,” he said.

The statute’s required policy disclosure “needs to encompass what the network will do with reports of hateful conduct,” said Coco in defending the constitutionality of 394-ccc. The networks “can take any action they wish or don’t wish to take on hateful conduct,” she said. “But a consumer would need to be able to look at that policy and say, ‘OK, I understand what the network is going to do if I report hateful conduct as defined by the statute.’”

The statute doesn’t require networks to respond to user reports, only to have the technical ability to do so, said Coco. “If the consumer reports just went into the ether, and couldn’t be responded to, that would be a violation,” she said.

On the state’s rationale for requiring networks to offer a mechanism for users to report hateful conduct online but not requiring them to act on those reports, Coco said New York lawmakers hoped that enacting a reporting mechanism requirement “could result in a mitigation of violence in some circumstances.” They were reacting to the May 2022 shooting at the Tops Friendly market in Buffalo in which all 10 murder victims were Black, she said. “During the shooting, the shooter livestreamed his crime on social media,” and the livestream was “interrupted” only when a user on the network “reported it,” she said.

The plaintiff-appellees think the district court “correctly enjoined” 394-ccc because the First Amendment “does not just protect our right to speak, but also protects our right to say nothing at all,” said Diaz, their attorney. The New York statute demands “that countless websites across the internet explain the contours of hate speech” as the state defines it, he said.

The 2nd Circuit should affirm the preliminary injunction “because it compels speech in a viewpoint-discriminatory manner,” said Diaz. The statute also “chills protected speech,” and is “unconstitutionally vague,” he said. What constitutes hate speech “has been debated for over a century,” he said. “Over just the last month or two," in the aftermath of the Oct. 7 Hamas attack on Israel and Israel's retaliatory strikes against Gaza, "we’ve been discussing around the country whether hate speech should be moderated online,” he said.

On the state’s contention that networks are free to do nothing about the online hateful conduct that users report, and to do so with no liability under the statute, “the issue there is that’s taking a position,” said Diaz. “It’s forcing the websites to take a position on whether certain types of speech -- here, hate speech that vilifies or humiliates certain protected classes -- should be moderated or not,” he said.

There’s a “burden” on websites “for posting any policy relating to hateful content,” said Diaz. “They may alienate their community, especially the plaintiffs here,” he said. “They’re here to push their free speech message. They’re here to preserve the marketplace of ideas.” If they’re compelled to talk about what hateful conduct is, it won’t “preserve the marketplace of ideas that they would like to see happen,” he said. “It’s not for the state to determine what should be in the marketplace of ideas, outside of unprotected speech,” he said.