Summary
The Second Circuit reviews a preliminary injunction enjoining enforcement of New York’s Hateful Conduct Law, which mandates social media platforms to implement reporting mechanisms and disclose policies regarding "hateful conduct." The court determines that the statute's constitutionality under the First Amendment depends on its proper interpretation, specifically whether compliance forces platforms to adopt the state's definition of hateful conduct or merely allows factual disclosures. To resolve this ambiguity, the court certifies three questions of state law to the New York Court of Appeals.
Topics
Practice areas
Questions Presented
- Whether New York General Business Law § 394-ccc(3) can be interpreted to require only neutral disclosure of a social media network's content-moderation policy, without requiring reference to or incorporation of the statutory definition of hateful conduct.
- Whether New York General Business Law § 394-ccc(2) can be interpreted to permit compliance through a generic reporting mechanism that need not specifically reference the statutory definition of hateful conduct.
- Whether § 394-ccc requires a social media network to provide a direct response to each individual reporting hateful conduct.
- Whether the proper interpretation of the Hateful Conduct Law determines the constitutionality of plaintiffs' as-applied First Amendment challenges and may determine their facial challenges.
Holdings
- The Second Circuit certified three questions concerning the interpretation of New York General Business Law § 394-ccc to the New York Court of Appeals because the statute's meaning is unsettled, the questions implicate important state policy choices, and an authoritative interpretation may be determinative of the appeal.
- If § 394-ccc(3) requires only disclosure of a social media network's own content-moderation policy, without requiring reference to or incorporation of the statutory definition of hateful conduct, the requirement would be subject to Zauderer scrutiny and would likely survive. If it requires a policy addressing or encompassing the statutory definition, it would be subject to at least intermediate scrutiny and would fail.
- If § 394-ccc(2) requires only a generic avenue for users to submit complaints and does not require reference to the statutory definition of hateful conduct or a substantive response, it may regulate conduct rather than speech. If it requires a dedicated mechanism for reporting the statutory category or requires networks to respond to reports, it would compel speech and fail at least intermediate scrutiny.
Key quotations
“For the reasons set forth below, we CERTIFY three questions of state law to the New York Court of Appeals.” (4)
“Whether the text of the statute can support that construction is a close question best resolved by the New York Court of Appeals.” (30)
“Answers to the questions below would be dispositive with respect to the as-applied constitutional challenges, and they may be dispositive as to the facial challenge.” (54)
Factual background
The appeal concerns New York's Hateful Conduct Law, enacted after the May 14, 2022 Buffalo supermarket shooting and alleged online radicalization and dissemination of attack-related material. The statute requires covered social media networks to publish a policy describing how they will respond to reports of defined hateful conduct and to maintain a mechanism for users to report such conduct. Plaintiffs operate or control an interactive legal blog, video-sharing platform, and content-sharing service, and alleged that the statute burdens their editorial and speech rights.
Procedural history
Plaintiffs sued New York Attorney General Letitia James and asserted First Amendment, Fourteenth Amendment, and Communications Decency Act preemption claims. The Southern District of New York granted a broad preliminary injunction, concluding that plaintiffs were likely to succeed on their as-applied First Amendment claims and facial vagueness and overbreadth claims. The State appealed under 28 U.S.C. § 1292(a)(1), and the Second Circuit certified three questions concerning the meaning of the Hateful Conduct Law to the New York Court of Appeals, retaining jurisdiction over the appeal.
Remand instructions
No remand was ordered. The Clerk was directed to transmit the certified questions, the opinion, briefs, appendices, and record to the Clerk of the New York Court of Appeals. The Second Circuit retained jurisdiction to decide the appeal after receiving the New York court's answer or if that court declined certification.