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Date: 02-21-2023

Case Style:

Eugene Volokh, et al. v. Letitia James

Case Number: 22-CV-10195

Judge: Andrew L. Carter, Jr.

Court: United States District Court for the Southern District of New York (Manhattan County)

Plaintiff's Attorney:

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Defendant's Attorney: New York Attorney General's Office

Description: New York, New York civil rights lawyer represented Plaintiffs, who sued the Defendant claiming that New York's Hateful Conduct Law violated the First Amendment of the United States Constitution.

Federal Courthouse - New York City, New York

Federal Courthouse - New York City, New York

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“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Matal v. Tam, 137 S.Ct. 1744, 1764 (2017) (citations omitted).

With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even


where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.


I. Factual Background

The following facts are drawn from the Complaint, Plaintiffs' declaration in support of their motion for preliminary injunction, and Defendant's declaration in opposition to the motion, and the documents relied upon therein.

A. The Plaintiffs

Plaintiffs Eugene Volokh (“Volokh”), Rumble Canada Inc. (“Rumble”) and Locals Technology Inc. (“Locals”) operate online platforms that they believe are subject to the law as a “social medial network” as defined by the law. Plaintiff Volokh is a California resident and the co-owner and operator of the Volokh Conspiracy, a legal blog. (Compl., ECF No. 1 ¶ 12.) Plaintiff Rumble, headquartered in Toronto, Canada, operates a website “similar to YouTube” which “allows independent creators to upload and share video content”. (Id. ¶ 13.) Rumble has a “profree speech purpose” and its “mission [is] ‘to protect a free and open internet' and to ‘create technologies that are immune to cancel culture.'' (Id.) Plaintiff Locals is a subsidiary of Rumble Inc. and operates a website that allows “creators to communicate and share content directly with unpaid and paid subscribers.” (Id. ¶ 14.) Locals also has a stated “pro-free speech purpose” and a “mission of being ‘committed to fostering a community that is safe, respectful, and dedicated to the free exchange of ideas.'” (Id.)

B. The Buffalo Mass. Shooting

On May 14, 2022, an avowed white supremacist used Twitch, a social media platform, to livestream himself perpetrating a racially motivated mass shooting on Black shoppers at a grocery store in Buffalo, New York. (Sawyer Decl., ECF No. 20 ¶ 4; id., Ex. A, ECF No. 20-1 at 34.) The attack left ten people dead and three wounded. (Id.) Shortly thereafter, a recording of the mass shooting “went viral” and was re-posted on several websites, including 4chan and Reddit. (Id.) A manifesto expressing the shooter's racist ideology was also shared on social media. (Id. at 15-16, 34.)

In response to the mass shooting, Governor Kathy Hochul issued a referral letter to the Office of the Attorney General (“OAG”), directing it to investigate the events surrounding the shooting, focusing on “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting[.]” (Id. at 6; Compl., ECF No. 1 ¶ 38.) Governor Hochul also directed the OAG to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.” (Id.)

On October 18, 2022, the OAG released a report detailing its findings. (Sawyer Decl., ECF No. 20 ¶ 3.) In the associated press release, Defendant stated that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.” (Compl., ECF No. 1 ¶ 3.)

C. The Hateful Conduct Law

The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited” went into effect on December 3, 2022. The law applies to “Social media network(s)”[1], and defines “Hateful conduct” as:

“[T]he 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.”

N.Y. Gen. Bus. Law § 394-ccc(1)(a). Thus, the Hateful Conduct Law requires that social media networks create a complaint mechanism for three types of “conduct”: (1) conduct that vilifies; (2) conduct that humiliates; and (3) conduct that incites violence. (Id.) This “conduct” falls within the law's definition if it is aimed at an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression”. Id.

The Hateful Conduct Law has two main requirements: (1) a mechanism for social media users to file complaints about instances of “hateful conduct” and (2) disclosure of the social media network's policy for how it will respond to any such complaints. First, the law requires a social media network to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” This mechanism must “be clearly accessible to users of such network and easily accessed from both a social media networks' application and website. . . .” and must “allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.” N.Y. Gen. Bus. Law § 394-ccc(2).

Second, a social media network must “have a clear and concise policy readily available and accessible on their website and application. . . ” N.Y. Gen. Bus. Law § 394-ccc(3). This policy must “include[] how such social media network will respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3).

The law also empowers the Attorney General to investigate violations of the law and provides for civil penalties for social media networks which “knowingly fail[] to comply” with the requirements. N.Y. Gen. Bus. Law § 394-ccc(5).

Outcome: Motion to dismiss granted.

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