Volokh v. James: Big Brother in the Big Apple: New York Law Turns Bloggers into Speech Police

VOLOKH V. JAMES ORDER GRANTING PRELIMINARY INJUNCTION

New York has enacted a new law with the goal of regulating disfavored—but constitutionally protected—online speech. The law, titled “Social media networks; hateful conduct prohibited,” ostensibly targets “hateful conduct,” but in reality requires online platforms to “respond [to],” “address” and “handle” protected speech that someone, somewhere finds “humiliating” or “vilifying” toward a group based on race, color, religion, or other protected categories.

The law is both unconstitutionally overbroad—it threatens vast swaths of protected speech on the internet—and unconstitutionally vague, in that it fails to define key terms and provides platforms with little guidance on how to properly comply. The law also appears to be just the first step in further regulation of online speech—which, if adopted, would also violate the First Amendment. Speech may be hateful, insulting, or offensive, but that doesn’t mean the government can regulate it; the United States has consistently chosen “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

On Dec. 1, 2022, FIRE sued New York’s Attorney General in federal court on behalf of Eugene Volokh, noted First Amendment scholar and co-founder of The Volokh Conspiracy blog, and online platforms Rumble and Locals, seeking to stop enforcement of New York’s unconstitutional law.

New York has appealed the preliminary injunction to the Court of Appeals for the Second Circuit. The State filed its opening brief on June 20, 2023 and FIRE filed its response on September 19, 2023. The Second Circuit heard oral arguments on the appeal on February 16, 2024.